LEGAL TRANSPLANTS AND CODIFICA TION: EXPLORING THE

NORTH AMERICAN SOURCES OF THE CIVIL CODE OF

ARGENTINA (1871)

General Reporter Jorge Sánchez Cordero

National Reporter Agustín Parise'

Research Associate, Center of Civil Law Studies, Louisiana State University Law

Center. LL.B. (Universidad de Buenos Aires 2001). LL.M. (Louisiana State University

Law Center 2006). Lecturer in Legal History (auxiliar docente), Universidad de Buenos

Aires 2001/2005.

The author is indebted to Abelardo Levaggi and Alain Levasseur for their

suggestions and constructive criticisms; and to Olivier Moréteau, Director ofthe Center

of Civil Law Studies al LSU, for his constant support and guidance. Special thanks are

due to the Asociación Argentina de Derecho Comparado, and in particular, to Laura

Balart, Alberto Dalla Via, Martín Laclau, and Julio César Rivera, who entrusted the

author with the drafting of the Argentine Report. Finally, the author thanks Joseph

Abraham, Jennifer Lane, and Julieta Marotta de Parise for their editorial assistance.

This paper was published, together with the world reports on legal history for the

18th Intemational Congress of Comparative Law, in LA CULTURE JURlDIQUE ET

L' ACCUL TURATION OU DROIT ILEGAL CULTURE ANO LEGAL TRANSPLANTS. WASHINGTON

CONGRESO 2010 (2010). Part of the research used for this Report was previously

included, in Spanish, in Volume 1 of the doctoral dissertation of the author, entitled:

Historia de la Codificación Civil del Estado de la Luisiana)' su Influencia en el Código

Civil Argentino (on file with the Universidad de Buenos Aires).

267

l. Legal Transplants and Borrowing of Legal Ideas

Ideas tend to spread quickly when they are successfully implemented. Legal ideas are no exception. Jurists have been, and are, familiar with the concept of borrowing ideas. Alan Watson, before developing his theory on legal transplants, briefly defines these as the moving oi a rule or a syslem oi law from one counlry lo anolher, or from one people lo anolher. ' In this paper it is understood that this moving of provisions will make the recipient of the provision the new owner, and in tum, the recipient makes the borrowed provision new: when the original provision interacts with the elhos of the recipient society, the interaction results in a body of its own.

Two main activities take place when looking al legal transplants. On the one hand, legislators, when Ihey borrow, try to borrow provisions that they believe will adapt successfully to their legal system and society, with the potential risk that those provisions may not adapt and fail in the process. On the other hand, legal historians and comparative law scholars, among others, many times try to trace the origins of new provisions or of provisions that will be transplanted.

The main objective of a work on comparative law is to expand the perspective and the study of the legal elements under analysis, and hence, improve those elements already existing or those that will be created in the future.2 Many times the lack of satisfaction

I WATSON, AJan, Legal Transplants: An Approach fo Comparative Law, 21 (2d ed. 1993).

2 PARISE, Agustín, "Las bibliotecas jurídicas como herramientas fundamentales del Derecho Comparado: El caso de Schmidt en la Luisiana del siglo XIX", 15 Revista de Derecho Comporodo 195, 197 (2009).

For an overview, in Spanish, of the origins of comparative law See, Alberto Ricardo DALLA VIA, El Derecho Público Comparado. http://www.derecho comparado.org.ar/documentos.htm [Last visit: December 06, 2009}, at 2-4.

268

with the solution in their own system pushes comparativists to look for the possibility of better solutions in other systems.' This pursuit will help in transforming the lawyer into a jurist: the latter does not limit his study to the current law as it is, and, naked of a scientific and social context; on the contrary, among other qualities, the jurist seeks the origins and reception that the different legal institutions had in different regions and time periods.4

Legal transplantation can be either of entire systems or of individual provisions, and has been around for thousands of years. For example, more than 2000 years ago, Plato explained that in order to make a new colony successful, the borrowing of ideas should be considered" When looking at the Americas, legal transplants and borrowings are noticeable. The American continent has been subject to many legal transplants. The first transplant was the transportation of Castilian law to the Hispanic possessions in the early sixteenth century.6 In those same regions, in the early nineteenth century, many drafters used legal transplants when

3 ZWEIGERT, Konrad & KÓTZ, Hein, An Introduction ro Comparative Law, 25 (Tony Weir transo 1977).

4 PARISE, supra note 2, at 198; and PAR1SE, Agustín, "La Imperiosa Remisión al Derecho Comparado en las Investigaciones de Carácter Jurídico", Revista Universitaria La Ley 36, 37 (Nov. 2002).

5 Legal transplants were addressed by PLATO in Book III of his work on The Laws. Within the conversation of Athen, Clin, and Megil it is possible to read:

Clin: [ ... J For the greatest part of Crete is attempting at present to establish a certain colony, and orders the Cnossians to take the eare ofthe matter; hut the city of the Cnossians (impases it) upon me and nine others; and at the same time orders us to lay down laws (taken) from this place. if any are pleasing to us, and, if there are any, from elsewhere, making no account of their foreign character, should they appear to be better. Let us then grant this favour to myself and you. After making a selection out of what has been said, let us in our discourse form a state, and colonize it, as if from its commencement; and there will be to us at the same time sn inquiry into what we are in search of, and at the same time 1 may perhaps make use of this information for the city that is to be... [emphasis added]. 5 BURGES, George, The Wurks of Plato, 119-120 (1859).

6 See 1 GARCÍA GALLO, Alfonso, Manual de Historia del Derecho Español, 103 (I0thed.1984).

269

elaborating their first national civil codes.7 The civil codes of Andrés Bello for Chile and of Dalmacio Vélez Sarsfield (Vélez) for Argentina were two important exponents of legal transplantation and borrowing. Furtherrnore, their works served as models for many other countries of Latin America, while they were also elaborated in part with borrowed provisions· In Louisiana, legal transplants also occurred.' At that same time, legal transplantation took place when the Digest of 1808 was applied in the region to comprise the Spanish laws that were still in effect.'o But legal transplants were not limited to Hispanic possessions in America. The 13 Colonies also experienced an early reception and later transplantation of English common law in their territory ."

This paper willlook at the Civil Code of Argentina of 1871 as an example of a legal transplant. Initially, the paper will analyze the work of V élez when drafting his civil codeo Secondly, the paper will mention sorne of the different sources that the drafter included in the notes to the artic1es of the Argentine Civil Codeo The paper will also provide a c1assification of the references that are made within the different notes. In addition, the paper will analyze North American sources of the Civil Code of 1871 in light of that final c1assification, intending to reflect the impact that North American sources had on the Argentine Civil Code of 1871.

7 See, e.g., PARISE, Agustín, "The Place ofthe Louisiana Civil Code in the Hispanic Civil Codifications: The Comments to the Spanish Civil Code Project of 1851", 68 La L. Rev. 823 (2008).

8 Id.

9 n.b., an early paper reflects in its title that sorne scholars had already looked at the civil law in Louisiana as a transplant. SEMMES, Thomas J., The Civil Law as Transplanted in Louisiana: A Paper Read Before the American Bar Association (1883).

10 About the SOUfces of the Digest of 1808 see, among many others, BATIZA, RodoJfo, The Louisiana Civil Code 011808: lts Actual Sources and Present Relevance. 46 Tu/. L. Rev. 4 (1971); and PASCAL, Robert A., Sources oJ Ihe Digesl oJ 1808: A Reply 10 ProJessor Balizo, 46 Tul. L. Rev. 603 (1972).

11 About the early American period See, e.g., REINSCH, Paul Samuel, "The English Common Law in the Early American CoJon¡es", in 1 Selecfed Essays in Anglo­American Legal History 367-415 (Association of American Law Schools ed. 1907); SCHWARTZ, Bernard. The Law in Amerlea: A History, 8-18(1974); and HALL, Kermit L. et al., American Legal history: Cases and Materia/s, 24-25 (1991).

270

11. The Civil Code of Argentina as an Example of a Legal Transplant 12

In 1864, Vélez was appointed to draft a civil code for Argentina." His draft was approved without parliamentary debate 14

by the Argentine National Congress on September 25, 1869, and took effect on January 1, 1871.15 The Civil Code of 1871 '6 had 4051 artic1es and was divided into two preliminary titles and four books: Preliminary Title 1, of laws [Iegislative acts] (De las leyes); Preliminary Tille 11, of the manner of counting intervals of the law (Del modo de contar los intervalos del derecho); Book 1, of persons (De las personas); Book 11, of personal rights in civil relations (De los derechos personales en las relaciones civiles); Book I1I, of real rights (De los derechos reales); and Book IV, of real and personal rights - dispositions in common (De los derechos reales y personales - disposiciones communes)."

Argentina has never enacted a subsequent civil codeo However, the existing code is the result of many partial revisions: ,. for example, the reform of 1889, introducing civil marriage; and the reform of 1968," under the direction of Guillermo A. Borda. This lalter reform introduced principies of social solidarity20 and

12 See generally, MORÉTEAU, Olivier & PARlSE, Agustín, "Recodification in Louisiana and Latin Ameríca", 83 Tul. L. Rev. 1103, 1143-1146 (2009).

13 2 LEVAGGI, Abelardo, Manual de Historia del Derecho Argentino, 266 (1987). 14 Id. al 269. See also CABRAL TEXO, Jorge, Historia del Código Civil Argentino,

156-178(1920). 15 Law No. 340, Sept. 29, [1] A.D.L.A. 496-905 (Arg.). 16 The current text of the Argentine Civil Code is available al CÓDIGO CIVIL

ARGENTINO, http://www.infoleg.goY.ar/infoleglnternetlanexos! 1 05000-1 09999/1 094811 texact.htm [Last visit: December 06,2009].

17 See Law No. 340, supra note 15, at 496-905. 18 1 LLAMBÍAS, Jorge Joaquín, Tratado de Derecho Civil Parte General, 199-203

(6th ed. 1975). 19 Approved by Law No. 17,711, dated Apri1 22. 1968. 1 BORDA, Guillermo A.,

Tratado de Derecho Civil Parte General, 143 (9th ed. 1987). 20 LEVAGGI, supra note 13, at 271.

271

modified 204 articles." Another significan! reform took place in 1987, when the Civil Code was amended to admit the divorce from the bonds of marriage. 22

Argentina has also attempted integral reforrns to the Civil Code of 1871. In the 1920s, Juan A. Bibiloni drafted a pre-praject of a civil code" that followed the principIes of Gerrnan legal science captured by the BGB.24 In the 1930s, !he pre-praject was revised by a commission25 that submitted a draft of 2144. articles and that was divided into a Preliminary Title and five books?6 In the 1950s, a new attempt for integral reforrn was made, under the leadership of Jorge Joaquín Llambías." The new draft included national jurisprudence and was inspired by the ltalian and Venezuelan codes (1942), the Peruvian Code (1936), and the Swiss Code (1912).28 Another opportunity of integral reforrn arase in the 1980s, but the attempt of 1987 al so failed.29 In the late 1990s, a new integral reforrn30 was

21 BORDA, GuillemlO Antonio, "La Reforma de 1968 al Código Civil Argentino", in 2 El Código Civil del Siglo XXI (Perú y Argentina), 1445 (Muñiz Ziches et al. coord. 2000). See also, VALIENTE NOAILLES, Luis M. , Comentarios a las Reformas al Código Civil, 7-9 (1968); BORDA, Guillermo A., La Refarma de 1968 al Código Civil (1971); GARRIDO, Roque & ANDORNO, Luis, Reformas al Código Civil (2d ed. 1971); and CASIELLO, Juan José, "Memorando la refonna civil de 1968", La Ley 11/28/2008 at l.

22 See Régimen de Matrimonio Civil y Divorcio: Ley 23.515 (Eduardo A. ZANNONI

ed., 2d ed. 1989). 23 See generaJly, 1-7 BIBILONI, Juan Antonio, Anteproyecto de Reformas al Código

Civil Argentino (1929). 24 LEVAGGJ, supra note 13, al 272. See generally, PARlSE, Agustín, "La Comisión de

Reformas al Código Civil (1926). Aproximación Histórico·Jurídica a su Proyección", lus Historia, Sept. 2006, http://www.salvador.edu.ar/jurilreih/3ro/index.htm [Lasl visit: December 06, 2009].

25 BORDA, supra note 19, at 148.

26 Proyecto de Código Civil Argentino, 523-537 (1938). 27 Anteproyecto de Código Civil de 1954 para la República Argentina, 7 (1968). 28 LEVAGGI, supra note 13, at 272. 29 See RIVERA, Julio César, "La Reforma de la Codificación Civil en América

Latina", 1 Revista de Derecho Comparado, 169, 178 (1999). 30 About the project See, LÓPEZ DE ZAVALíA, Fernando J., "Reflexiones sobre el

actual Proyecto de unificación civil y comercial", in Estudios sobre el Proyecto de Código Unificado de 1998, 25·70 (Roberto H. Brebbia dir. 2001); and RIVERA, Julio César, "El Proyecto de Código Civil para la República Argentina", 35 Rev. Jurídica U.

Inter. PR. 381 (2001).

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presented and sent for study to the National Congress.31 The project was drafted by, among others, Atilio Aníbal Alterini, Jorge Horacio Alterini, and Julio César Rivera.32 The main characteristic of the project was the unification of the civil and commercial codes. 33

Finally, in June 2008, a new codifYing commission was appointed to work on the drafting ofa reform, update, and unification ofthe civil and commercial codes.34

A. Vélez and an EcIectic Work with Sources

It has been said, when referring to codification, that to choose correctly is to create,35 and that drafters use the knowledge that humanity has treasured.36 While drafting his code, Vélez worked with enthusiasm and with an unbreakable perseverance37 and was able to identifY materials from many sources; laws, drafts of codes, codes, commentaries, and scholarly works that served him as guides.38 Vélez, as other drafters, used the ideas and codes that existed at the time. 39 He was especiaJly interested~as were Andrés

3l See "Proyecto de Código Civil de la República Argentina", in VII Antecedentes Parlamentarios 149-546 (2d ed. 2000); and RIVERA, supra note 29, at 178.

32 See http://www.biblioteca.jus.gov.arlNota-Elevacion.POF [Last visit: December 06.2009J.

33 See RIVERA, supra note 29, at 179.

34 See Resolution 1710/2008 of the Ministry 01' Justice, available af http://www.infoleg.gov.arlinfoleglnterneUanexos/140000-144999/142152/norma.htm [Last visit: December 06, 2009}.

35 1 MACHADO, José Olegario, Exposición y comentario de! código civil argentino: conteniendo la edición oficial y las notas del Dr. Vélez-SÁRSFIELD, la aplicación de los fallos de la suprema corte nacional, los de las cámaras de apelación de la capital y un estudio sobre la ley del registro civil xvi (1898).

36 COLMO, Alfredo, Técnica Legislativa del Código Civil Argentino, 350 (2d ed. 1961).

37 LANFRANCO, Héctor P., La Codificación Civil en la República Argentina, 53-54 ( 1939).

38 SALVAT, Raymundo, "El Código Civil Argentino (Estudio General). Historia, Plan o Método y Fuentes", Vll REVISTA ARGENTINA DE CIENCIAS POLÍTICAS, 420, 436 (1913).

39 LEVAGGI, Abelardo, Dalmacio Vélez Sársfield Jurisconsulto, /80 (2005).

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Bello in Chile, Teixeira de Freitas in Brazil, and Louis Moreau­Lislet in Louisiana-in the jurists and works that had been able to theorize on modem law while building from the principIes of Roman law.40 Finally, Vélez added to those initial materials the identification ofmores, uses, and customs.41

The sources used by Vélez may be divided into two: material (v.gr. the Corpus Iuris Civilis, the Siete Partidas) and formal.4' In many occasions formal sources -as in Louisiana and Uruguay­"dress" with modem language the foreign ideas which may be universal.43

Vélez was perfectly acquainted with Roman law and Spanish legislation. Due to the archaic nature of lhose texts, he looked for direct and modem models that would reproduce those ideas: the project of a civil code by Teixeira de Freitas for Brazil, the Code Napoléon, the project of a civil code for Spain by García Goyena , the civil code of Chile by Andrés Bello," and the Louisiana Civil Code of 1825. Without intending to be exclusive, the following enumeration includes sorne of the different sources that V élez mentions in his civil code: (i) positive law and drafts: the Corpus Iuris Civilis;45 the Novísima Recopilación;'6 the Siete Partidas;47 principIes of canon law;'8 the project of a civil code for the state of New York;4' the codes of Austria;O Baden," Bavaria,"

40 Id.

41 1 SALVAT, Rayrnundo, Tratado de Derecho Civil Argentino: Parte General, 132 (1950).

42 LEVAGGI. supra note 15, at 181, 4J Id 44 ZORRAQuiN BECÚ. Ricardo, "La recepción de los derechos extranjeros en la

Argentina durante el siglo XIX", 4 Revista de Historia del Derecho, 325, 350 (1976). 4S See, e.g., note to article 2913 ofthe Argentine Civil Code in Law No. 340, supra

note 15, at 773. 46 Note to artiele 2074, id. at 697. 47 Note to artiele 455, id. at 546. 48 Note to article 14, id at 507. 49 Note to artiele 2538, id. at 741. so Note to article 19, id at 508. SI Note to article 22, id. a1508. "Note to artiele 1640, id. at 662.

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Belgium,53 Sardinia,54 Denmark,55 Fribourg,56 Haiti,57 Hesse,58 Holland,59 ltaly,60 Naples,61 Norway,62 Prussia,63 Russia,64 Sweden,65 and Vaud;66 and (ii) doctrinal works by Aubry and Rau,67 Blackstone,68 Bonnier,6' Chabot,70 Demante,71 Demolombe," Domat,73 Duranton,74 F oelix, 75 Gómez de la Serna,76 Grenier,77 Heinecio," Kent," Laya,'O Leclercq,81 López," Marcadé,83 Massé," Maynz," Merlin," Meyer," Molitor,88

53 Note to article 167, id. at 524. S4 Note to article 21, id. at 508. 55 Note to anide 325, id. at 536. 56 Note to article 275, id. at 532. 57 Note to article 325, id. at 536. 58 Id. 59 Note lo anide 462, id. al 547. 60 Note to article 1198, id. at 625. 61 Note to articJe 21, id. at 508. 62 Note to article 325, id. al 536. 63 Note to article 19, id at 508. 64 Note to anide 167, id. al 524. 65 Note to article 325, id. al 536. 66 Note lo article 459, id. at 547. 67 Note to artic1e 1074, id. a1615. 68 Note to article 167, id. at 524. 69 Note to article 1026, id. at 611. 70 Note to artide 3448, id. at 834. 71 Note to article 3389, id. at 826. 72 Note to article 2680, id. at 753. 73 Note to articJe 1198, id. al 625. 74 Note to article 1065, id. at 614. 75 Note to article 3638, id. at 856. 76 Note to article 3129, id at 799. 77 Note to article 31 18, id at 797. 78 Note to article 2182, id at 706. 79 Note to article 3136, id at 800. 80 Note to article 3115, id at 796~ 797. 8\ Note to article 18, id. at 507-508. 112 Note to article 392, id at 541. 83 Note to article 1196, id at 625. 84 Note to article 3994, id at 898. 85 Note to article 2748, id at 758. 86 Note to article 3, id. at 505~506. 87 Id 88 Note to article 2398, id. at 726.

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Morell,B9 Pardessus,90 Pont," Pothier,"' Proudhon,"3 Savigny,"' Seoane 95 Story 96 Toullier 97 Troplong 96 Yazeille 99Yinn¡'0 100 and , , , , , , Zachariae. '01 Even when French authors and the codes that followed the Code Napoléon seem to prevail, the enumeration reflects that y élez did not limit himself to one single stream of thought, and that his very diverse sources helped him to elaborate an eclectic codeo The enumeration also helps the readers to conclude that most sources used for the drafting of the Argentinean code, were, to sorne extent, following, studying, or analyzing Roman law.

The sources of the Argentinean Civil Code of 1871 have been studied with different intensity.'02 For example, there are studies on the sources from the patrio 103 law and on the influence of canon

89 Note to articJe 5, id. at 506. 90 Note to article 2680, id at 753. 91 Note to article 2064, id. at 696. 92 Note to article 1650, id. at 663. 93 Note to artide 2566, id. at 743. 94 Note to article 3283, id. at 813. 95 Note to article 166, id. at 524. According to SALERNO, this is the only reference

to the work of Seoane. See Marcelo Urbano SALERNO, "La legislación comparada del señor Seoane, fuente del código civil argentino", 20 Revista de/Instituto de Historia del Derecho Ricardo Levene , 311, 315 (1969).

96 See, e.g., note to articIe 9 of the Argentine Civil Code in Law No. 340, supra note 15, at 506.

97 Note to article 1198, id. at 625. 98 Note to articJe 1186, id. at 625. 99 Note to article 3991, id. at 898. 100 Note to article 3108, id. at 795. 101 Note to artide 338, id. at 537. 102 On the sources ofthe Argentine Civil Code in general, see ALLENDE, Guillenno

L., "Fuentes del código civil: Análisis y manejo de las mismas", LXXVI-730 Revista del Notariado 1771-1791 (1973); CHÁNETON. Abe1, Historia de Vélez Sársfield, 379-424 (reprint 1969); LAFAILLE, Héctor, Fuentes del Derecho Civil y Código Civil Argentino, 83-102 (l917); LEVAGGI, Abelardo, "El método del código civil argentino y sus fuentes", 10 Revista de Estudios Histórico-Jurídicos, 159-175 (1985); 1 LLAMBÍAS, Jorge Joaquin, Tratado de Derecho Civil: Parte General, 211-224 (10th ed. 1984); 1 SALVAT, Raymundo, Tratado de Derecho Civil Argentino: Parte General, 132-142 (1950~; and the recent contribution in LEVAGGI, supra note 15, at 180-204.

10 See generally, CABRAL TEXO, Jorge, Fuentes Nacionales del Código Civil Argentino (estudio de algunas de sus disposiciones) (1919).

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law. '04 At the same time, studies have been conducted on the origins in the Castilian,'05 French,'o6 Gerrnanic,107 and Roman 108 laws and in the work by Teixeira de Freitas. '09 Even (he influence of the Louisiana Civil Code of 1825 has been studied'10

104 See, e.g., LEVAGGI, Abelardo, Dalmacio VéJez Sársfield y el Derecho Eclesiástico 191-229 (1969).

105 See, e.g., ALLENDE, Guillermo L., "Los códigos españoles como fuentes de nuestro código civil", LA LEY 1981-C 1015-1026 (1981). See, a150, SAI.!:'R~O, supra note 95.

106 See, e.g., ALLENDE, Guillermo L. & FAZIO DE BELLO, Marta, "El código francés

como fuente del código civil argentino", LA LEY 1979-D 928-932 (1979); BOSSERT, Gustavo A., "Influencia del código civil francés en el código argentino y otros códigos de Hispanoamérica", LA LEY 2005-A 1452-1457 (2005); CÜRTABARRiA, Jorge Juan, "El Cade Napoleon y sus comentaristas como fuentes del Código Civil Argentino", ius Historia, March 2005, http://www.salvador.edu.ar/juri/reihl2dadelllindex.htm; and SALERNO, Marcelo Urbano, "Un retorno a las fuentes del código civil argentino: la doctrina francesa", in Fuentes Ideológicas y Normativas de fa Codificación Latinoamericana, 219-240 (Abelardo LEVAGGI coord. 1992).

107 See, e.g., KNÜTEL, Rolf, "Influenza dell'allgemeines landrecht prussiano del 1794 sul código civil argentino del 1869", in Dalmacio Vélez Sársjiefd il diritto latinoamericano 79-108 (Sandro Schipani coord. 1991); LEÓN, Pedro, El Código de Prusia como fuente del Código Civil Argentino (1946); and PIZARRO, Néstor A .• El Código de Prusia y Savigny (Su influencia en la Docrrina y la Legislación), 21, 33 (1944¡.

10 See, e.g., 1 DÍAZ BIALET, Agustín, El derecho romano en la obra de Vélez Sársjield (1949); DiAZ BIALET, Agustín, "La transfusión del derecho romano en la Argentina (s.XVI-XIX) y Oalmacio Vélez Sársfield autor del Código Civil Argentino (1864-1869)", in V Studi Sassaresi 295-315 (1981); and LEVAGGi, Abelardo. "La fonnación romanística de Dalmacio Vélez Sársfield", in V Studi Sassaresi 317-345 (1981).

109 See, e.g., GAlTl, Edmundo, "Freitas en las notas del Código Civil (Con motivo del Código Civil editado por La Ley)", La Ley 1975-A 1094-1098 (1975); MARTíNEZ PAZ, Enrique, Freitas y su influencia sobre el código civil argentino, liv-Ivi (1927); MEIRA, Silvia A. 8., "Oireito brasileiro e direito argentino. Codigos comercial e civil. Influencia do 'Esbo~o' de Teixeira de Freitas no projecto de Vélez Sársfield", in V Studi Sassaresi 228-244 (1981); and LEVAGGI, Abelardo, "Influencia de Teixeira de Freitas sobre el proyecto de código civil argentino en materia de relaciones de familia. Las fuentes utilizadas por Vélez Sársfield", in Augusto Teixeira de Freitas e ¡I diritto latinoamericano 399-426 (Sandro Schipani coord. 1988).

110 See, e.g., PIZARRO, Néstor A., El Código Civil Argentino y el Código de Luisiana (Estudio sobre las Fuentes Legislativas del Código Civil) (1950); LIFSIC,

Ricardo, "Historia del Código Civil de Louisiana. Antecedente del Código Civil Argentino", 12 Revista de Historia del Derecho, 164-172 (1961); TRUSSO, Francisco

277

When drafting his civil code Vélez had easy access to the sources he used. He owned an extensive personal library, which contained sorne of the works of concordances that had been popular in America during the nineteenth century.

1. V élez's Library

Vélez intended to donate his library to the University of Córdoba (Argentina); therefore, his heirs 111 delivered it to the university,112 where it is currently preserved." 3 The catalog of Vélez's library, published in 1940 and 1980,'14 indicates that it comprised 621 entries, many of those divided into several volumes." 5 In Velez's time, his library was "significantly up-to­date.,,116 The collection gained recognition, and even though not exclusively a law library, it was well fumished with law books.117

The library is of importance mainly beca use of the value and significance of the materials included, and to a les ser extent, because

Eduardo, "El derecho hispano indiano en el derecho civil de Louisiana y su influencia a través de éste en el Código Civil Argentino", La Ley 1986-8 960-965 (1986); KNÜTEL,

Rolf, "Influences ofthe Louisiana Civil Code in Latin America", 70 Tul. L. Rev., 1445-1480 (1996); ZERDAN, Inés, "La reparación del daño moral. Influencias reciprocas entre el código de Luisiana y el código civil argentino", La Ley 1999-F 971-983 (1999); and AL TERINT, Jorge Horacio, "Influencia del Código Civil de Luisiana de 1825 en el Código Civil Argentino de 1871: Acerca de los Efectos de la Inscripción Registral", in Essays in Honar ofSaúl Litvinoff, 89-108 (Olivier MORÉTEAU et al. eds. 2008).

111 CASTÁN V ÁZQuEz,José María, "Los Libros Jurídicos Españoles consultados por Vélez Sársfield", in Estudios en Homenaje al Dr. Guillermo A. Borda, 75 (1984).

112 LEVAGGI, supra note 15, at comment to picture 2. . 113 Id.; and CAST ÁN V ÁZQUEZ, José María, La Influencia de la Literatura Jurídica

Española en las Codificaciones Americanas, 124 (1984). 114 CASTÁN V ÁZQUEZ, José María, "Vélez Sársfield. Jurista Bibliófilo", in IV

Homenaje a Dalmacio Vélez Sársjield, 525 (2000). lIS See Biblioteca Mayor, Catálogo de la Donación de Vélez Sársfield 1-134

(1980). The catalog also ¡ncludes an addendum with other items and manuscripts that originally were not part ofVélez's library.Id. at 135.

116 CABRAL TEXO, Jorge, Historia del Código Civil argentino, 88 (1920). 117 CASTÁN V ÁZQUEZ, supra note 113, at 124.

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of the number of books." 8 The library includes the manuscripts of the Civil Code by the drafter" 9 and law books fÍ'om very diverse origins, among others, Anglo-Saxon, Argentine, Brazilian, Castilian, Germanic, Roman, and Uruguayan. '20 French law and commentaries on the Code Napoléon certainly outnumbered the other items of the library. Many of those French material s had been given to the drafter by Manuel Rafael García, who acted as secretary of the Argentine delegation in France. '21

2. Nineteenth-Century Works of Concordances

The other element that granted Vélez an easy access to sources was a set of works that presented concordances between the different civil codes of that time. Those works were essential tools for the drafters of civil codes around the world and especially in Latin America.'" Among the works of concordances it is possible to mention the work of 1840, Concordance entre les Codes civils étrangers et le Code Napoléon,123 in French and by Fortuné Anthoine de Saint-Joseph; and the work of 1852, Concordancias, Motivos y Comentarios del Código Civil Español,'24 in Spanish, by Florencio García Goyena. This second work is inc1uded in the catalog ofthe library ofVélez. '25

Another work must be added to those two concordances: Juan

118 CASTÁN V ÁZQUEZ, supra note 114, at 525.

119 CAReANo, Ramón, "El Código civil argentino: Sus manuscritos originales", in Cuestiones y Juicios, 231 (1910).

120 See generally Biblioteca Mayor, supra note J 15, at 1-134. 121 CABRAL TEXO, supra note 116, at 88. 122 See, generally, KNÜTEL, supra note 110. 123 DE SAINT -JOSEPH, Anthoine, Concordance entre les codes civils étrangers el le

Code Napoléon (1840). There was also an edition in [OUT volumes, in J 856, I-IV DE SAINT-JOSEPH, Anthoine, Concordance entre les codes civils étrangers el le Code Napoléon ouvrage terminé et publié par M A. de Saint-Joseph (1856).

124 ¡-IV GARCiA GOYENA, Florencio, Concordancias, motivos y comentarios del códi50 civil español (1852).

5 Biblioteca Mayor, supra note 115, at 54.

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Antonio Seoane in 1861 published a work that addressed the jurisprudence of Spain and other regions. 126 This work was well read in the region of Río de la Plata. 127 Together with the previous compilations, it helped in the study of legal doctrines and solutions that had been implemented in other countries, and, in sorne cases, even in countries that did not follow the Roman tradition. 128 For example, when looking into other legal systems, Seoane classified his study in five main groups or divisions: Civilian, Slavic, Germanic, Oriental, and Romanic. 129

B. Notes to Articles

The Civil Code of 1871 included notes for many of its 4051 articles. Those notes are not part ofthe positive law, and only intend to inform the reader about the genesis of the thoughts of V élez. 130 Therefore, they are an element that may help understand and judge the value of the articles, in a similar way as an exposé des motifs and the legislative history.131 The notes are still useful as an additional element for interpretation of the codified provision,'32 and may serve as guides or auxiliaries when studying articles, although in other cases they may generate confusions. '33 The notes may al so be useful for determining a juridical, economical, or philosophical position

126 SEOANE, Juan Antonio, Jurisprudencia Civil vigente Española y Estranjera, según las sentencias del Tribunal Supremo desde el establecimiento de su juristirudenCia en 1838 hasta la fecha (1861).

27 TAU ANZOÁTEGUI, Víctor, La Codificación en la Argentina (1810-1870): Mentalidad Social e Ideas Jurídicas, 276 (1977).

128 Id. at 275. 129 SEOANE, supra note 126, at ix. 130 MOISSET DE ESPANÉS, Luis, "Reflexiones sobre las notas del código civil

argentino", in V Studi Sassaresi, 448 (1981). ¡31 LEVAGGI, supra note 15, at 209,

132 COBAS, Manuel Osvaldo & ZAGO, Jorge Alberto, "La influencia de las 'notas' del código civil en la ciencia del derecho argentino y latinoamericano", in Dalmacio Vélez SÁRSFIELD e il diritto latinoamericano, 146-147 (Sandro Schipani coord. 1991).

133 1 RIVAROLA, Rodolfo, Instituciones del Derecho Civil Argentino: Programa de una nueva exposición del derecho civil. 12 (1901).

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that inspired the Civil Code of 1871. '34 [n brief, the notes have been seen as a treatise of Argentinean civillaw. '35

The notes may have been generated as a response to a letter that the minister Eduardo Costa sent to V élez on October 20, 1864.136 The letter reads in part:

To guaranty the success of a work of this nature [i.e. civil code], that we can say wil! make a mark in the life of societies, the President desires that the project entrusted to the recognized abilities of doctor Vélez contain al! the necessary background for its discussion.

[The President] believes that it would be very convenient that articles are annotated with the correspondences or discrepancies with the provisions of the law established in the current codes of the Nation, together with their conforrnity or disagreement with the civil codes of the main nations of the world.

[The President] also considers that it would lead to a more effective understanding if doctor V élez would set out in an autonomous work the reasons for those main resolutions Ihat alter the present law and the fundamental reasons of the new dispositions that he very probably has judged necessary when raising our legislation, that had been for long left stationary, to the standard s of progress of civilization and science.137

134 COBAS & ZAGO, supra note 132, at 148. 135 DíAZ BIALET, Agustín, "El espíritu de la legislación en la concepción del

derecho en Dalmacio Vélez Sársfield", in Da/macia Vélez SARSFIELD e il diritto latinoamericano, 24 (Sandro Schipani caord. 199\).

l36 COBAS & ZAGO,supra note 132, at 144. 137 The passages ofthe ¡etter read in Spanish:

Para que una obra de esta naturaleza [i.e. código civil], que bien puede decirse marcará una época en la vida de los pueblos, ofrezca las posibles garantías de acierto, S.E. el señor presidente desea que el proyecto que

281

The request by Eduardo Costa was most probably aimed at the completion of a work similar to the Concordancias of García Goyena.136 Notwithstanding, Vélez did not accomplish that autonomous work. V élez made reference to the existence of the notes in a letter to Eduardo Costa dated June 21, 1865. He enclosed with that letter the first book of his civil codeo The letter read in part:

1 believe the work is accomplished as your Excellency has requested. 1 indicated the concordances between the articles of each ti!le and the current laws and the codes of Europe and America, for an easier and more illustrated discussion of the draft.

On occasions 1 had the need of including long notes in articles that solved archaic and serious matters that had been under debate by jurists or when it was necessary to legis1ate in areas of law tbat needed to be moved from doctrine and turned into law. '39

confia a la reconocida competencia del doctor Vélez, contenga todos los antecedentes necesarios para su discusión. Considera S.E. que sería muy conveniente que en los diversos artículos que lo forman, sean anotadas las correspondencias o discrepancias con las disposiciones del derecho establecido en los códigos vigentes de la Nación, así, su conformidad o disconformidad con los códigos civiles de las principales naciones del mundo. Considera asimismo, que conduciría eficazmente a su mejor inteligencia, que el doctor Vélez expusiera en un trabajo separado los motivos de aquellas resoluciones principales que alteran el derecho actual y las razones fundamentales de las nuevas disposiciones que es muy probable ha de juzgar necesario introducir para elevar nuestra legislación, por tan largo tiempo estacionaria al nivel de los progresos de la civilización y la ciencia.

CABRAL TEXO, supra note 116, at 77-78; LEVAGGI, supra note 15, at 204; and COBAS & ZAGa, supra note 132, at 144.

138 LEVAGOr,SUpra note 15, at204. 139 The passages ofthe letter read in Spanish:

Creo que el trabajo está hecho como V.E. me lo encargó, concordando los artículos de cada título con las leyes actuales y con los Códigos de Europa y

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Two observations are necessary regarding the notes: they do not always indicate the sources, due to silence or due to error; also, at least 1/3 ofthe articles do not have notes'40

C. Classification of Notes

Different studies have been rnade of the notes. Sorne scholars, following the text of the letler of rernission of the first book,14' divided the notes of Vélez into concordances, citations, and strictly notes."2 In the first, V élez intended to indicate the concordances between his dispositions and those of Rornan and Spanish law and with the rernaining codes and drafts.'43 In the second, Vélez reproduced the thoughts of scholars and theories, especially the French.'44 In the third, the Argentine drafter expressed his own opinions, and frequently, dressed thern with the other two types of notes. 145

América, para la mas fácil é ilustrada discusion del proyecto. Me he visto en la necesidad de poner muchas veces largas notas en artículos que resolvian antíguas y graves cuestiones entre los jurisconsultos, ó cuando ha sido preciso legislar en puntos de derecho que debian ya salir del estado de doctrina y convertirse en leyes.

VELEZ SÁRSFIELD, Dalmacio, Proyecto de Código Civil para la República Argentina--Libro Primero v (1865). See also, LEVAGGI, supra note 15, al 204 and 310; and COBAS & ZAGO, supra note 132, at 144.

140 Rodríguez, Carlos J., "La redacción de los códigos: Necesidad de la indicación

de la fuente de sus artículos, XVII-XVI Revista del Colegio de Abogados de Buenos Aires, 191 (1938).

141 Part ofthe letter reads in an English translation: When the code is published with the alterations that could be necessary, the citations, concordances and notes will be removed; and all artic1es will have

a unifonn numeration. VELEZ SÁRSFIELD, supra note 139, at xi. See also, MOISSET DE ESPANES, supra note 130, at 448. 142 MOISSET DE ESPANES, supra note 130, at 448. 143 Id al 449. 144 Id. al 450. 145 Id.

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Other scholars have al so divided the notes into three: concordances, doctrinal, and heuristic (even when one note could faIl into two or three of these categories).146 The first type of note tends to locate the provision within the comparative legislation and doctrine, establishing the affinity, identity, and oppositions. 147 The second type of note provides grounding for the solutions given to "archaic and serious matters that had been under debate by jurists,,148 and when ideas had to be moved from doctrine and tumed into law.149 The third type of note indicates expressly or tacitly the source of the artic1e. 150 Even when other studies and c1assifications have been made,'51 this paper foIlows this second tri-partite c1assification.

D. References to Sources within the Notes

As Abelardo Levaggi mentioned, the statistics stated since the work of Lisandro Segovia,'52 about the amount of times that Vélez cites the different sources are of interest, but certainly, they are not conc1usive or as relevant as many think. 153 Nonetheless, it is necessary to determine precisely what references exist within the Civil Codeo That information will help in the understanding of the presence that different sources had within the Argentine legislation. It will be possible to identify, for example, the impact that French, Spanish, Roman, or North American scholars and legislation had on

146 LEYAGGt,supra note 15, at 207. 147 Id.

148 VELEZ SÁRSFIELD, supra note 139, at v. See al50 LEVAGG1, Abelardo, "Fuentes de la sección "de las personas en general" de código civil argentino de Vélez Sársfield influencia de ella en el código civil uruguayo", in Da/macia Vélez Sársfield e il diritto latinoamericano, 228 (Sandro Schipani coord. 1991).

149 LEVAGGI, supra note 15, at 208. 150 Id.

151 See, e.g. the early work of DíAZ DE GUIJARRO. Enrique, "El valor de las notas del código civil", 44 Jurisprudencia Argentina, 223-228 (1933).

152 See the statistics and study provided by Segovia. 1 SEGOVIA, Lisandro, El Código civil de la República Argentina (cópia de la edición oficial íntegra) con su esplicacion y crítica bajo lalorma de notas, xvii-xxvii (1881).

!53 LEVAGGI, supra note 15, at 181.

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the Codeo Those elements, together with many other [actors, will help in the understanding of the origins and spirit of the Civil Code of1871.

A c1assification of references may divide them into three types: general, direct, and transcribed. In the first group, Vélez does not identify the article, section, or passage of the source to which he refers, while he limits himself to making a general reference. In the second group, Vélez identifies exactly the artic1e, section, or passage that he refers to. In the third group, even if he does not refer to specific articles, sections, or passages, V élez transcribes passages of the sources in his notes.

Those three categories may be also divided into sub-categories: positive and negative. The first are those references in which Vélez follows or supports the position expressed in the source. The second sub-category is made by those references in which Vélez rejects or condemns the solution expressed in the source.

Finally, the three categories and sub-categories also qualify with the tri-partite division of concordances, doctrinal, and heuristic (n. b. al so contemplating the distinction between material and formal sources).'54 AIso, when a reference is heuristic and exclusive to one single so urce, it is indicated as exclusive heuristic.

lB. North American Sources of the Civil Code of Argentina

North American sources have been, and are still, consulted by Argentine members of the judiciary and law-makers. Argentine courts have looked at US court decisions when making their own judgments, and, therefore, have many times used US cases as precedents. In addition, the impact of North American sources is perceived in drafts of legislation in areas of public and private law. Even when Argentine sources are generally traced to Roman,

[54 Id. at 207.

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Spanish or French sources, the North American sources should not be overlooked.

Argentine courts have looked at US decisions when solving local claims.'55 On several occasions, the Argentine Supreme Court has mentioned decisions of the US Supreme Court. F or example, in the Argentine case De la Torre156 (1877), the Argentine Supreme Court cited North American case law and doctrinal writings from, among others, Story and Kent.'57 Another example is found in the Argentine case Acevedo'56 (1885), where the vote in dissent mentions the North American National Digesl of Abbot. 159 Finally, the seminal US decision in the case Marbury v. Madison '60 (1803) has been cited in, among other occasions, the Argentine case Soja '6'(1887). In Soja, the Argentine court ruled as if bound by the North American precedent, and even left aside its local precedents.'62

Argentine public law found important sources in North America. For example, when drafting what would tum out to be the Argentine Constitution of 1853, attention was given to, among others, the US

155 See genera/ly, MILLER, Jonathan M., "The Authority of a Foreign Talisman: A Study oru.s. Constitutional Practice as Authority in Nineteenth Century Argentina and the Argentine Elite's Leap of Faith'". 46 Am. U. L. Rev., 1483 (1997).

156 Corte Suprema de Justicia [CSIN], 21/08/1877, "D. Lino de la Torre sobre recurso de habeas corpus,'" Fallos (1878·19-231) (Arg.).

See also, MILLER, supra note 155, at 1548-1551. 157 See, e.g., D. Lino de la Torre, supra note 156, at 237. 158 Corte Suprema de Justicia [CSJN], 01108/1885, "D. Elíseo Acevedo sobre

recurso de habeas corpus, '" Fallos (1886-28-406) (Arg.). See also, MILLER, supra note 155, at 1551-1553. 159 See, e.g., D. Eliseo Acevedo, supra note 158, at 410. 160 William Marbul)' v. James Madison, 5 U.S. 137 (1803). 161 Corte Suprema de Justicia [CSJN], 22/0911887, "D. Eduardo Sojo por recurso

de habeas corpus contra una resolución de la H. Cámara de Diputados de la Nación," Fallos (1889-32-120) (Arg.). See the reference to the North American case in id. at 132.

See also, MILLER, supra note 155, at 1553-1568. 162 See, D. Eduardo Sojo, supra note 161; MAROITA, Julieta, "Marbul)' v. Madison

in Argentina: An Example of Legal Transplant?", 30 (on file with the author); and MILLER, supra note 155, at 1559.

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Constitution.'63 The influence is notorious when one looks, for example, at the preambles of both constitutions.'64 Both preambles are similar, and the Argentine clearly follows the wording of the US preamble. Another example may be found in the first Argentine project of acode of criminal procedure. In 1873, Florentino González and Victorino de la Plaza drafted a proposal that was inspired by, among others, the code of criminal procedure of New York of 1850 and the project for Louisiana by Edward Livingston.'65

Finally, North American sources have also been used by Argentine law-makers when drafting in the area of private law. A clear example is found in the sources used by V élez when drafting the Argentine Civil Code of 1871. In his work, V élez makes generic references to the US in three notes,'66 but in many others he refers

163 See, LEVAGGI, Abelardo, "Constitucionalismo Argentino 1810·1850", Ius Historia, Del. 2005, http://www.salvador.edu.ar/jurilreih/2da/I04.pdf [Last visit: December 06, 2009], al 5-9; and PARISE, Agustín, "La Carta Fundamental de los argentinos: Desde lo intrínseco, un siglo y medio después", in Essays in Honor 01 Saúl LitvinojJ67 1-672 (Olivier MORÉTEAU e' al. eds. 2008).

164 The US Preamble reads: We the people of the United States, in arder to form a more perfect union, establish justice, ¡nsure domestic tranquility, provide foc the common defense, prom ate the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

http://topics.law.comell.edu/constitutionlpreamble [Last visit: December 05, 2009J. The Argentine Preamble reads in an English translation;

We, the representatives of the people of the Argentine Nation, gathered in General Constituent Assembly by the will and election of the Provinces which compose ¡t, in fulfillment of pre-existing pacts, in order to form a national union, guarantee justice, secure domestic peace, provide for the common defense, promote the general welfare and secure the blessings of liberty to ourselves, to our posterity, and to all men of the world who wish to dwell on Argentine soil: invoking the protection of God, source of all reason and justice: do ordain, decree, and establish this Constitution for the Argentine Nation.

http://www.senado.gov.ar/web/interes/constitucionlenglish. php [Last visit: December 05, 2009].

165 LEVAGGI, supra note 13, at 89. 166 See the general references to the United States in the note 10 Title lI, Section 1lI,

Book 11, and in the notes lo articles 41 and 1324. Law No. 340, supra note 15, al 630, 5!I, and 637.

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specifically to the Civil Code of Louisiana of 1825, to the Project of a Civil Code for the State ofNew York, and to the works of Joseph Story and James Kent. This paper focuses on these last references and analyzes them in light of the division explained in n.o. In this manner, the paper will illustrate the North American impact on the Argentine Civil Codeo

A. Civil Codes

The North American continent was not immune lo the nineteenth-century codification movements.'67 Quebec enacted its civil code in 1866,'68 while in the United States, sorne states, such as Louisiana, Alabama,'69 California,170 North Dakota, South Sur,171 South Carolina,172 Georgia,173 Montana,174 and New York 175

envisioned civil codeso

Codification in the US found inspiration in the theories of

167 See generally, PARISE, supra note 7, at 830-831; GRUNING, David, "Vive la

Différence? Why No Codification of Private Law in the United States?", 39 Revue Juridique Themis n.s., 153 (2005); HEAD, John W" "Codes, Cultures, Chaos, and Champions: Common Features of Legal Codification Experiences in China, Europe, and North America", 13 Duke J. Comp. & Inl'! L. 1, 52·88 (2003); WAGNER, Wienczyslaw l, "Codification ofLaw in Europe and the Codification Movement in the Middle ofthe Nineteenth Century in the United States", 2 Sto Louis U. L.J, 335 (1952); and WElSS, Gunther A., "The Enchantment of Codification in the Common-Law World", 25 Yale J. Inl'l L., 435, 498·532 (2000).

168 About the Civil Code of 1866 See, among others, YOUNG, Brian J., The Politics olCodification: the Lower Canadian Civil Code 011866 (1994).

169 2 ESPINOLA, Eduardo, Tratado de Direito Civil Brasileiro, 447 (1939). 170 BERGEL, Jean Louis, "Principal Features and Methods of Codification", 48 La.

L. Rev.1073, 1076 (1988). 171 Id.

172 COOK, Charles M., The American Codification Movement: A Study 01 Anlebellurn Legal ReJorm 121 (1981).

173 BERGEL, supra note 170, at 1076. 174 Id.

175 COOK,supra note 172, at 121.

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Jeremy Bentham and in the Code Napoléon. 176 The latter had proved to be a useful and successful form, and seemed possible to be applied to the North American conditions.177 To these sources it is necessary to add the codification cfforts of David Dudley Field.

1. Louisiana Civil Code

In the early nineteenth century, the legal culture of Louisiana was an isolated "Civil Law island" partially surrounded by a "sea of Common Law," a status that had to be safeguarded to survive. 17B

Therefore, on June 7, 1806, James Brown and Louis Casimir Elisabeth Moreau-Lislet were appointed to draft a civil codeH9

Their draft was promulgated on March 31, 1808, by the Legislature of the Territory of Orleans, and entitled A Digest 01 the Civil Laws Now in Force in the Territory oIOrleans. '80 Soon a need for a new body of law was felt, and on March 14, 1822, three jurists were appointed to revise the Digest of 1808. '81 Those jurists (i.e. Pierre Derbigny, Edward Livingston, and Louis Casimir Elisabeth Moreau­Lislet) submitted a Preliminary Report to the Louisiana Senate on February 13, 1823.182 That same year, on March 26, the Louisiana Legislature ordered that the revision by the three jurists be printed and distributed as soon as it was ready to go to press. 183 Finally, in

176 Id. at 74. 177 Id. at 71.

178 PARISE, Agustín, Non-Pecuniary Damages in {he Louisiana Civil Code Article 1928: Originality in the Ea,iy Nineteenlh Century and lts Projected Use in Further Codificarían Endeavors, 14 (May 18,2006) (unpublished LL.M. thesis, Louisiana State University, Paul M. Hebert Law Center) (on file with the LSU Law Library').

1791806La.ActsNo.214. ISO 1808 La. Acts No. 120. 181 1822 La. Acts No. 108.

182 LIVINGSTON, Edward, A Republication 01 lhe Pro jet 01 [he Civil Code 01 Louisiana 011825, Ixxxv (1937).

183 1823 La. Acts No. 68.

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1825, the Louisiana Civil Code, having 3522 articles, took effect. '84

The Code was divided into a prelirninary title and three books: Prelirninary Tille, of the General Definitions of Rights and the Prornulgation of the Laws; Book 1, of Persons; Book U, of Things and of the different rnodifications of property; and Book IlI, of the different rnodes of acquiring the property of things. '85 Each book was divided, when pertinent, into tilles, chapters, sections, paragraphs, and articles.

Vélez refers to the Louisiana Civil Code in 295 notes to the articles of the Argentine Civil Code. '86 The analysis of those notes shows that the Louisiana Civil Code had a significant presence within the Argentine Codeo Following the elassification in U.D, the exarnples below help explain the irnpact that the Louisiana Civil Code had on the Argentine Civil Codeo

Most references to the Louisiana Civil Code are direct. That is to say, they are cases in which Vélez identifies the exact nurnber of the Louisiana Civil Code article that he cites.

Within the direct references, a rnajority are positive and of concordance. This rnay be explained because the Louisiana Civil Code was ineluded in both works of concordances by García Goyena and Saint-Joseph. These two works were certainly useful tools in elaborating these notes. In the notes of concordances, Vélez was able to show that the legal texts of Argentina and Louisiana share several principIes and dispositions. This should not surprise the reader: Louisiana and Argentina were both at sorne point subjects of Spain. An exarnple of a direct and positive reference that indicates concordance is found in the note to artiele

184 Civil Code ofthe State ofLouisiana (1825). 185 Id.

186 See appendix A. n.b. sorne of the references that Vélez made to the Louisiana Civil Code were incorrect, due mainly to material erecrs while drafting. See the complete analysis of each article in the doctoral dissertation of the author, entitled: Historia de la Codificación Civil de! Estado de la Luisiana y su Influencia en el Código Civil Argentino (on file with the Universidad de Buenos Aires).

290

4015187 of the Argentine Civil Code. '88 In that note Vé1ez indicated the positive concordance with artic1es 3465 '89 and 3466'90 of the Louisiana Civil Codeo It must be noted that Louisiana inc1uded a reference to slavery, something that was a1ready abo1ished in Argentina at the time of drafting the Civil Codeo The work of concordances of Saint-Joseph Iranscribed Ihe lexl ofboth Louisianan artic1es. '9' The work of concordances of García Goyena inc1uded a reference lo article 3465 in Ihe nole to artic1e 1966. '92 The Spaniard considered both articles of Louisiana in the nole to article 1961 of his work. '93 Vé1ez reproduced, lO a great extent, article 1961 of the Spanish text and, therefore, showed that the Spanish text was a formal source for his work. In addition, Vé1ez reproduced severa1 of the sources included in the note lo the Spanish article, but inc1uded references to the works of Pothier, Zachariae, Duranton, Vazeille, and Trop10ng.

187 Article 4015 ofthe Argentine Civil Code reads in an English translation:

Ownership and other real rights over irnmovable property are also prescribed by [thirty} years continuous possession, with iotent ofhaving the thing for oneself, without necessity of title or good faith on the part of the possessor, [without distinction among present or absentees] saving what is provided with respect to servitudes, for the prescription of which, a title is needed.

Civil Cade of Argentina: Translated into English, with an Introduction and Index 416 ~u1io ROMAÑAcH,jr. trans., 2d ed. 2008).

I 8 Law No. 340, supra note 15, a190l. 189 Artide 3465 ofthe Louisiana Civil Code of 1825 reads:

The property of immoveables is prescribed for by thirty years, and that of slaves by fifteen years, without any need of title or possession in good faith.

Civil Code oflhe Slole of Louisiana 1092 (1825). 190 Article 3466 ofthe Louisiana Civil Code of 1825 reads:

This prescription runs both against residents of the State and absentees. But the possession, on which it is founded, ought to have the other qualities, which are necessary to the prescription of ten and twenty years, that is to say, it must be continuous and uninterrupted during all that time; it must be public and unequivocal, and under the title of owner.

Id at 1092. 191 SAINT-JOSEPH (1840), supra note 123, at 125; and SAINT-JOSEPH (1856, Il),

supra note 123, at 571. 192 IV GARCíA GOYENA, supra note 124, at 324. 193 Id. at 320.

291

In his efforts to show that Louisiana and the Argentine Civil Code shared sorne similar criteria, Vélez al so made direct references to Louisiana when he drafted his doctrinal notes. Thirty notes had positive references to the North American text. For example, Vélez drafted a doctrinal note for artiele 2807'" of his Civil Code and referred to usufruCt.'95 That note ineludes an opening reference to article 525196 ofthe Louisiana Civil Codeo Even when Vélez omitted sorne passages of the text of Louisiana, it seems that he used the latter as a formal source for his article. Saint-Joseph did not transcribe the text of article 525 and limited his work to indicate the similarity to the text of the Code Napoléon. '97 García Goyena mentioned article 525 in his note to article 435 of !be Concordancias.'9B Vélez used the note ofGarcía Goyena as a formal source when drafting the first paragraph of his extensive note, because he borrowed almost all the same references that the Spaniard made to Roman and Spanish law, and to the nineteenth­century codeso It must be noted that the rest of the note is a creation of Vélez in which he referred al so to the works of Demolombe and Proudhon.

On six occasions, V élez made doctrinal notes in which he did not follow the Louisiana tex!. In these notes he made direct, negative, and doctrinal references. For example, in the doctrinal note

194 Article 2807 ofthe Argentine Civil Code reads in an Englisb translation: Usufruct is the real right of using and enjoying a thing the ownership of which belongs to another without altering its substance.

Civil Code 01 Argentina, supra note 187, at 303. 195 Law No. 340, supra note 15, at 763-764. 196 Article 525 ofthe Louisiana Civil Code of 1825 reads:

Usufruct is the right of enjoying a thing, the property of which is vested in another, and to draw rrom the same all the pretil, utility and advantages which it may produce, provided it be without altering the substance of the thing. The obligation of not altering the substance of the thing takes place only in the case of a complete usufruct.

Civil Code oflhe Slale ofLouisiana, 142 (1825). 197 SA1NT-JOSEPH (1840), supra note 123, at 30; and SAINT-JOSEPH (1856, 1I), supra

note 123, at 480. 198 1 GARCÍA GOYENA, supra note 124, at 384.

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for article 619,199 Vélez explained his position on the obligations of the debtor when there has been an augmentation or diminution in the currency.200 In that note V élez correctly indicated that there was a negative concordance with article 2884201 of Louisiana. In his opinion, V élez delegated the matter to the legislative power, and added that if he had to take a position, he would not follow the one adopted by Louisiana. Saint-Joseph did not include the North American text.202 García Goyena mentioned the North American text in his note to article 1096 of the Concordancias. 203 Vélez and the Spaniard made similar references and transcriptions in their notes. Therefore, it must be concluded that V élez worked with the Concordancias when drafting his note.

General references also had an impact on the Argentine text, although they were significantly less that the direct references. In this category, the references are mainly negative. The general and negative references also help in the understanding of both legal systems. When comparing the dispositions of the Argentine and the Louisiana texts, they help in appreciating the value of those references when studying the different areas of law. An example of a reference that is general, negative and of concordance is found in the

199 Article 619 ofthe Argentine Civil Cade reads in an English translation: If the debtor's obligation involves the delivery of a sum of a detennined species or quality of [national] currency the obligation is discharged by giving the species specified [, or other species of national currency al the exchange rate that applies to the place] al the time of maturity of the obligation.

Civil Code o/ Argentina, supra note 187. at 92. 200 LawNo. 340, supra note 15, a1565. 201 Article 2884 ofthe Louisiana Civil Cade of 1825 reads:

The obligation, which results from a loan ofmoney, can never be more than the numerical sum mentioned in the contract. 1 f there has been augmentation or diminutian in the value of the specie befare the time of the payment, the debtor is bound to retum nothing more than the numerical sum which was lent to him, in such specie as has currency at the time of the payment.

Civil Cade ollhe Slale 01 Louisiana 912 (1825). 202 SAINT.JOSEPH (1840), supra note 123, al 98; and SAINT-JOSEPH (1856, Il), supra

note 123, al 553. 203 III GARCÍA GOYENA, supra note 124, at 124.

293

note to artiele 17204 of the Argentine Civil Codeo In that note Vélez indicated a negative concordance with Louisiana, who, contrary to Argentina, expressly admitted customs.205 Even when the references of V élez do not specify an article in Louisiana, together with KnüteI'°6 and Pizarro/07 it must be noted that customs were ineluded in artiele 3208 of the Louisiana Civil Code of 1825. Saint-Joseph inc\uded the text of artic\e 3 in his Concordances. 209 García Goyena al so mentioned that Louisiana expressly admitted customs, this time in article 5 of the Concordancias. 210 There is a similarity in language, and therefore, it seems that V élez picked his reference to Louisiana from the Spanish tex!.

Heuristic references are, of course, positive. In 48 notes, Vélez used Louisiana as a source for his articles. In 26 of those notes, Louisiana was the exclusive source. Most of those references are located in Book III ofthe Argentine Civil Code, and generally cover lacunas !hat García Goyena or Saint-Joseph did not address. An example of an exclusive and heuristic reference is found in artiele 3122211 of the Argentine Civil Codeo In that note V élez made

204 Article 17 ofthe Argentine Civil Code reads in an English translation: Laws may be repealed in whole or in part only by other laws. Uses, customs, and other practices canoot creale rights except when laws refer lo them.

Law No. 340, supra note 15, al 507. 205 Id at 507. 206 KNOTEL, supra note 110, al 1477. 207 PIZARRO, supra note 110, al 44.

208 Article 3 ofthe Louisiana Civil Cade of 1825 reads: Customs result from a long series of actions constantly repeated. which have by such repetition, and by uninterrupted acquiescence, acquired the force of a laeit and common consent.

Civil Code olthe State 01 Louisiana 2 (1825). 209 SAINT-JOSEPH (1840), supra note 123, at 1; and SAINT·JOSEPH (1856, lI), supra

note 123, at 459. 210 1 GARCÍA GOYENA, supra note 124, at 18. 211 Article 3122 ofthe Argentine Civil Cede reads in an English translation:

Ir the obligation ror which the third party has given a mortgage were annulled as a result of an exception that was purely personal in natufe, as that raised by a minor, the mortgage given by a third party shall be valid and shall have its full and entire effect.

Civil Code 01 Argentina, supra note 187, at 333.

294

exclusive reference to article 3266'12 of Louisiana.'13 Vélez took principIes from the text of Louisiana and reproduced almost verbatim sorne passages of it. Saint-Joseph transcribed a summarized version of article 3266, but omitted sorne passages that Vélez used in his text.214 García Goyena made no reference to article 3266 of Louisiana in his Concordancias.'15 When drafting this article and note, the Argentine necessarily worked directly with the Louisiana Civil Code of 1825.

In sorne occasions, heuristic references included references to the Roman and Spanish law. Therefore, there could be cases in which García Goyena, following other French principIes, departed from the law that V élez considered its own and proper to adopt. In most cases V élez adopted the text of Louisiana by means of a direct translation. This situation may be seen clearly in article 3012216 of the Argentine Civil Codeo In the note to that article Vélez mentioned article 755'17

212 Article 3266 ofthe Louisiana Civil Cade of 1825 reads: Although the nullity of the principal obligation ¡neludes that of the mortgage, this is lO he understood, with respect lo a persan giving a mortgage for another, only in so far as the principal obligation is rescinded by ao absolute nullity; for if the principal debtor has only obtained a rescission by a plea merely personal, such as minority or coverture, the mortgage given for him by a third persao is no less val id, and shall have its fuI! and entire effect.

Civil Code ollhe Slale 01 Louisiana 1028-1030 (1825). 213 Law No. 340, supra note 15, at 798. 214 SAINT-JOSEPH (1840), supra note 123, at 116; and SAINT-JOSEPH (1856, 11),

supra note 123, at 563. 215 See the silence in the outline available at PARISE, supra note 7, al 926-927. 216 Article 3012 ofthe Argentine Civil Cade reads in an English translation:

Persoos that can establish servitudes ayer their estates can a150 acquire servitudes; however, persoos that do nol enjoy the exercise of their rights, such as minors, can acquire servitudes even though they cannot establish them.

Civil Code 01 Argentina, supra note 187. at 321. 217 Artide 755 ofthe Louisiana Civil Cade of 1825 reads:

Those who can establish servitudes on their lands can a150 acquire servitudes. There are sorne persoos who cannot establish servitudes, who nevertheless can acquire them; such as those who cannot exercise their rights, minors, women not authorized, administrators, tutors, husbands; for the acquisition

295

of Louisiana and incorporated dispositions of the North American text, although it limited the number of examples.218 Louisiana was a formal source for the Argentine artiele. Saint-Joseph, in his edition of 1840, did not transcribe completely the text of artiele 755.219 On the contrary, in the edition of 1856, the French author completely reproduced the text of artiele 755.220 García Goyena made no reference to artiele 755.221 It must be noted that Vélez added a reference to the Siete Partidas.

V élez drafted seven notes that were illustrated with references transcribed from the Louisiana tex!: these were notes in which V élez used the Louisiana text to show concordances (positive or negative) or to illustrate his doctrinal writings. In most cases tbe transcribed texts were taken from the work by García Goyena. An example will illustrate this position. In artiele 3302222 of his code Vélez indicated a positive concordance with article 944223 of the Louisiana Civil Code.224 It must be noted that the concordance is partial, because the North American text refers only to successions ah intestato. Vélez provided a Spanish and partial translation of the North American article in his note. Saint-Joseph transcribed an abbreviated version of article 944 in his work of 1840 and ineluded sorne passages that

of a servitude augments the value and convenience of an estate. Civil Code o[ Ihe Stale o[ Louisiana 236-238 (1825). 218 Law No. 340, supra note 15, at 785. 2\9 SAINT-JOSEPH (1840), supra note 123, al 36. 220 SAINT-JOSEPH (1856, Il), supra note 123, a1489. 221 See the silence in the outline available at Parise, supra note 7, at 894. 222 Article 3302 ofthe Argentine Civil Cade reads in an English translation:

The incapacity or unworthiness shall be measured only as of the time of the death ofthe persan from whose succession a persan attempts to ¡nherit.

Civil Cade 01 Argentina, supra note 187, at 350. 223 Article 944 ofthe Louisiana Civil Cede of 1825 reads:

The incapacity of heirs is the absence of those qualities required in order to inherit at the moment the succession is opened. He who wants these qualities at this time cannot be the heir. lt is at the moment of the opening of the succession that the capacity or incapacity ofthe heir, who presents himselfto claim an intestate succession. is considered.

Civil Code o[lhe Slale o[ Louisiana 304 (1825). 224 Law No. 340, supra note 15, at 816.

296

Vélez included in his note.225 In the edition of 1856, the Frenchjurist completely reproduced the Louisiana article.226 García Goyena addressed the topic in article 620 of the Concordancias,22' and transcribed part of article 944 of the Louisiana Code.'28 In his note, Vélez reproduced almost exactly the transcription ofthe Spaniard. It must be noted too that Vélez also repeated other transcriptions and references that were included in the Spanish note. Moreover, Vélez added a reference to the work of Aubry and Rau. Finally, it must be noted that Vélez repeated verbatim the first paragraph ofthe Spanish article. Therefore, the article and the note of Garcia Goyena were formal sources for the Argentine article and note.

The references to the Louisiana Civil Code are dispersed throughout the entire Argentine Civil Code, with the exception of Preliminary Tille I1, of the manner of counting intervals of the law. The main clusters of references to the North American text are located in Book 11, of personal rights in civil relalions, and Book I1I, of real rights.

2. Project ofa Civil Code for the State ofNew York

David Dudley Field, influenced by the works of Jeremy Bentham,229 advocated for codificalion in the United States during the nineteenth century .'30 After drafting a project of a civil code and four other projecls in the period 1847- I 865,'31 Field tumed oul lo be one of the greatest exponents of codification in North America.'32

2'5 • SAINT-JOSEPH (1840), supra note 123, at 41. 226 SAINT-JOSEPH (1856, 11), supra note 123, at 496. 227 11 GARCíA GOYENA, supra note 124, at 71-72.

228 Id. at 71.

229 HERMAN, Shael, "The Fate and the Future of Codification in America", 40 Am.

J. Lef,al Nis!., 407, 422 (1996). 2 oSee generally, BATIZA, Rodolfo, "Sources of the Field Civil Code: The Civil

Law Influences on a Corumon Law Code", 60 Tu/. L Rev., 799 (1986). 2JI HERMAN, supra note 229, at 422. 2J2 COOK, supra note 172, at 187.

297

Field believed there was a need for a political code, acode of civil procedure, acode of criminal procedure, acode of private rights and obligations, and acode of crimes.233 Therefore, he presented before the legislature ofNew York a partial project of a civil code that was approved in 1848 and another project for a penal code that was approved in 1882:34

Many consider Field as the creator of codification in the US and feel that his Project of a Civil Code for the State of New York was very important at that time.235 The Project was presented by Field and Alex W. Bradford before the Legislature ofNew York on February 13, 1865,236 and was comprised of four divisions: persons; property; obligations; and general provisions applicable to persons, property, and obligations, or to two of those subjects:37 The Project was al so subdivided into parts, tides, chapters, articles, and sections. The Project had 2034 sections236 with notes for many of them, and indicated references to, among others, related jurisprudence,239 revised statutes,240 the Code Napoléon,'41 and the Louisiana Civil Code of 1825.242 Finally, the Project had a schedule of forms243 and a detailed thematic index.244

233 WEISS, supra note 167, at 504-505. 234 Extractsfrom Notices o/David Dud/ey Fíe/d, 39 (1894). 235 COOK, supra note 172, at 187.

236 The Civil Code o/the State o/New York ix (1865). 237 Id. at 2. 238 Id. at 647. 239 For example, the note to article 443 of the Project reads: "Halsey v. Me.

Connick, 18 N.Y., 147." Id. at 135. 240 For example, the note to artic1e 523 ofthe Project reads: "R.S .. 758, § 12." Id. at

156. 241 For example, the note to article 444 of the Project reads: "This and the fOUT

sections following are similar to those ofthe Cede Napoleon, arto 559-563." Id. at 135. 242 For example, the note to Chapter 2, Title 3, Part 4, Division 2 of the Project

reads: "The provisions of this chapter, except § 455, are similar to those of the Code Napoleon and the Code of Louisiana." Id at 136.

243 Id. al 648-660. 244 Id. al 661-776.

298

Even though the Project was never lhe law of New York (it was vetoed twice by the gavemar145

), ils eight drafts and 18 partial corrections were very influential.246 For example, in the US its provisions about the law of contracts were adopted by California, North Dakota, South Dakota, Georgia, Idaho, and Montana.24

?

The Project was a source for the codification works of Vélez,248 who had a copy in his private library.249 Vélez believed that the Louisiana Civil Code was better than the Project of New York,250 and only cited the New York text as a source in ten articles of the Argentine Civil Cade 251

Eight references to the Project were direct, and all of those references were positive. Four of lhose references were of concordance. For example, in the note to article 2038252 of the Argentine Civil Code Vélez indicated a concordance with section 675253 of the

245 FIELD, Henry M., The Life ofDavid Dud/ey Pie/d, 88 (1898). 246 Extracts, supra note 234, at 39. 247 HERMAN, supra note 229, at425. 248 See RABINOVICH, Ricardo David, "Alrededor del muy mencionado y poco

conocido proyecto de código civil para el estado de Nueva York", 22 Revista de Historia del Derecho, 279 (1994); and LEVAGGI, supra note 15, at 196.

249 Biblioteca Mayor, supra note 115, at 83. 250 See the letter of Vélez 10 Domingo Faustino Sanniento, dated February 25,

1866. A passage of the letter reads in an English translation: 1 have read almost all the Project of a Civil Code for New York. 1 believe the Civil Code of Louisiana is better.

Museo Histórico Sanniento, Archivo, carpeta 2, número 235. "Carta de Dalmacio Vélez Sársfield a Domingo Faustino Sarmiento - 25/2/1866," cited by LEVAGGI, supra note 15, at 184.

25 ¡ See appendix B. 252 Article 2038 ofthe Argentine Civíl Code reads in an English translation:

A surety that pays more than his share is subrogated to the rights of the creditor against the co-sureties for the excess, and he may demand a proportionate payrnent from al! the co-sureties.

Civil Code 01 Argentina, supra note 187, at 233. 253 Section 675 ofthe Project for New York reads:

A party to ajoint or joint and several obligatíon, who satisfies more than his share ofthe claim against all, may require a proportionate contribution from all the parties joined with him.

The Civil Code ofthe Stale ofNew York, 197 (1865).

299

Praject. 254 In that same note V élez indicated also a concordance with the Siete Partidas, thal is to say, with Spanish Law. The nole of Field to section 675 indicates references lo case law and to a work of Story.255 Four other references of Vélez to the work of New York were exclusive heuristic. For example, in the note to article 1680,256 Vélez only indicated a reference lo section 1324257 of the Project.258

The article of V élez is a translation and almost a verbatim transcription of the North American text. This reflects that the North American text was a formal source for the Argentine article. In this second example, the references that Field makes in the note to his article are to the revised stalutes and to laws of 1854, both of which seem to have no relation to the civil law. 259

Vélez also made a reference to the Praject that was general, negative, and doctrinal. In the extensive note lo article 3115,260 Vélez addressed different aspects of mortgages.261 In that note, Vélez said that the Praject adopts a system that differs fram the one adopted by the Argentine Civil Codeo The silence of VéIez's

'54 - Law No. 340, supra note 15, a1694. 255 The Civil Code vi/he Sta/e vlNew York, 197 (1865). 256 Article 1680 ofthe Argentine Civil Code reads in an English translation:

The name of a partnership that conducts its business in places outside the territory of the Republic may be continued by persons that are their successors in such affairs, and by their heirs, with the knowledge of the persons whose names were used, ifthey are still alive.

Civil CaJe ofArgentina, supra note 187, al 197. 257 Section 1324 ofthe Project for New York reads:

The name of a partnership, which has had business relations with places without the United States, may be continued in use by the persons succeeding to its business, and by their successors, upon compliance with the provisions of this artide, and with the consent of the persons, if living, whose names are used.

The Civil Code ol/he S/ole olNew York, 395 (1865). 258 Law No. 340, supra note 15, at 666. 259 The Civil Code ol/he S/ate 01 New York, 395 (1865). 260 Article 3115 of the Argentine Civil Code reads in an English translation:

There is no mortgage other than a conventional mortgage constituted by the debtor of an obligation in the manner provided in this title.

Civil Code 01 Argentina, supra note 187, at 332. 261 Law No. 340, supra note 15, at 797.

300

reference may be corrected by identitying that lhe Project addresses mortgages in sections 1608 to 1646, Chapler 2, Tille 14, Part 4, and Division 3.262 The notes that Field included in his chapter on mortgages made indications almost exc1usively to the common law, and therefore, the negative reference of Vélez should be no surpnse.

Finally, Vélez drafted one note that inc1uded a transcribed reference to !he Project, which was also positive and of concordance. The reference is located in artic1e 1670263 of the Argentine Civil Code, and on that occasion Vélez referred to section 1285264 of the New York text to show that both texts were similar when stating malters of partnership and heirs.265 Vélez wrongly referred to the artic1e when he was actually translating and transcribing part of the note of the North American provision.266 The note by Field al so included a reference to the work of Story on partnership, and other references to case law.

Vélez worked with the Project of a Civil Code for the State of New York. He found it of interesl especially when drafting on partnerships, but he al so referred to it on malters of divorce, obligations, deposit, and wills.

262 The Civil Cade aflhe Slale afNew York, 485-499 (1865). 263 Article 1670 ofthe Argentine Civil Cade reads in ao EngJish translation:

The heirs or legatees of partnership rights do nol have partnership status, unless aH the parties consent 10 the substitution, or the substitution had beeo contracted with the deceased partner and accepted by the heir.

Civil Code of Argentina, supra note 187, al 197. 264 Section 1285 ofthe Project for New York reads:

A partnership can be formed only by the cansent of all the parties thereto, and therefore no new partner can be admitted into a partnership, without the consent of every existing member thereof.

The Civil Cade aflhe Slale ofNew Yark, 382 (1865). 265 Law No. 340, supra note 15, at 665. 266 The passage that Vélez trans1ated reads: "No une can be made a partner by

inheritance ur otherwise against his will (Jacquin v. Buisson, 11 How. Pro 385)." The Civil Cade aflhe Slale afNew Yark, 382 (1865).

301

B. Doctrinal Writings

During the nineteenth century, the US literature ofthe law was diverse. It was lead by hundreds of case reports, which month by month covered the developments of the courtS:67 Every state published reports that inc1uded the decisions of their higher courtS:68 In addition, during the last half of the century, approximately one thousand treatises or commentaries were published:69 The vast majority were editions of American books, and non-American editions of British treatises.270 Once a work was popular and sold well, publishers would hire other men to carry on under the valuable name,271 a practice that somehow still prevails.

Many US doctrinal works, reports, and legislation reached Latin America. Some of the legislation, reports, and commentaries reached Argentina and were studied when facing the need to solve conflicts in those areas oflaw. For example, Vélez had in his library 34 volumes of the US Supreme Court Reports,'" a copy of The Federalist Papers,273 and works by, among others, Abbott,274 Brightly,275

267 FRIEDMAN, Lawrence M., A History o[ American Law, 538-539 (1973). 268 Id. al539. 269 Id. al 541. 270 Id.

271 Id.

272 Biblioteca Mayor, supra note 115, at 113. m Id. al 48-49. 274 Id. al 1.

The works are AS8on, Benjamín V .• A Treatise upon (he United States Courts and

(he;r Practice explaining Ihe enacfments by which they are controlled (1869); and ABBOTT, Benjamin V" A Digest o[ (he Reports 01 (he United Sta/es Courts, and o/ the Ocls o/Congress (1867).

275 Biblioteca Mayor, supra note 115, at 20. The work is BRIGHTLY, Frederick e., An Ana/ytical Digesl al/he Laws ofthe united

States from the adoption ofthe Constitution (1857).

302

Cooley,276 Curtis,277 Field,278 Jameson,279 Livingston,280 Seaman,281 Tiffany,282 Washbum,283 and Wheaton.284

1. Kent's Commentaries

James Kent was bom on July 31, 1763 in Fredericks, New York.285 In 1777, Kent started studying at Yale College,286 and, in 1785, he was admitted as an attomey of the Supreme Court of the

276 Biblioteca Mayor, supra note 115, at 32. The work is Me INTYRE COOLEY, Thamas, A Treatise un the Constitutional

Limitations which Res! Upon (he Legislative Power of (he Sta/es of the American unian ( 1868).

277 Biblioteca Mayor, supra note 115, at 35. The work is TICKNER CURTIS, George, History of rhe Original, Formation and

Adoption ofthe Constitution ofthe United Sta/es. With Notices o/its Principal Framers (1865). Vélez al so had a Spanish translation of that same baok, by Cantilo and with a preface by Vélez himself.

278 Biblioteca Mayor, supra note 115, at 49. The work is DUDLEY FIELD, David, Outlines o/an International Code (1872). 279 Biblioteca Mayor, supra note 115, at 64. The work is ALEXANDER JAMESON, John, The Constitutional Convention (1867). 280 Biblioteca Mayor, supra note 115, at 68. Vélez had a French version of the work by Livingston: LIVINGSTON, Edward,

Exposé d'un systeme de législation criminelle pour l'état de la Louisiane et pour le ÉtatsMUnis d'Amérique (1872).

281 Biblioteca Mayor, supra note 115, at 105. The work is CHAMPION SEAMAN, Ezra, The American System of Government: lts

Character and Workings, lIs Defects, Outside Party Machinery and lnjluences and (he ProSfierity ofthe People Under lts Proteclion (1870).

82 Biblioteca Mayor, supra note liS, at 109, The work is TIFFANY, Joel ,A Treatise on Government (1867). 283 Biblioteca Mayor, supra note 115, at 132, The work is WASHBURN, Emery, A Trealise on rhe American Law of Easements and

Servitudes (1863). 284 Biblioteca Mayor, supra note 115, at 132. The work is WHEATON, Henry,Elements oflnternational Law (1888). 285 DUER, John, A Discourse on the Life, Character, and Public Services of James

Kent. Late Chancellor ofthe State ofNew-York, 5 (1848). 286 Id. at 10.

303

State:87 In 1793, he was appointed Pro fes sor of Law at Columbia College.288 Five years later, he was made justice of the Supreme Court ofNew York,28' and, in 1814, he was raised to the office of Chancellor of the State,290 where he served for nine years.291 James Kent died in 1847.292

At Columbia College, once he resumed his teaching after being Chancellor, he started to deliver lectures in 1824, in which he covered nearly all the subjects that would later form his Commentaries on American Law (Kent's Commentaries).293 Two years later, a revised edition ofhis lectures was published as the first volume of Kent's Commentaries. 294 His initial ambition was to publish two volumes, but he realized that was too limited, and by 1830, the fourth and final volume was published.295 That editio princeps was quickly followed by a second one, broader and more comprehensive.296 He then published revised third (1835) and fourth editions (1841 ).297 The work of Kent had a quick and broad circulation, occupying a privileged place in the law oflices of the nineteenth century.298

Kent's Commentaries provided for the first time a systematic overview and discussion of the main areas of American law. 299 His work was seen as a local altemative to the Commentaries of Blackstone.30o Kent's Commentaries comprised, in its seventh

287 Id. at 18. 288 Id. al 27. 289 Id. at 32. 290 Id al 53. 291 Id. al 69. 292 STYCHIN, Carl F., "The Cornmentaries of Chancellor James Kent and the

Development ofan American Common Law", 37 Am. J. Legal Hist., 440, 443 (1993). 293 DUER, supra note 285, al 72.

294 Id. a173. 295 Id al 74.

296 STYCHIN, supra note 292, at 443. 297 Id. 298 Id. 299 Id. lOO Id.

304

edition (i) Volume 1:301 Part l of the law of nations, Part II of the govemment and constitutional jurisprudence of the United States, Part III of the various sources of the municipal law of the several states, and Part IV of the law conceming the rights of persons; (ii) Volume II: 302 Part IV of the law conceming the rights of persons (continued), and Par! V of the law conceming personal property; (iii) Volume 1ll:303 Part V of the law conceming personal property (continued), and Part VI of the law conceming real propeJ1y; and (iv) Volume IV:304 Part VI of the law conceming real property ( continued).

Kent' s Commentaries went through at least fourteen editions,305 and the twelfih edition was edited by Oliver Wendell Holmes, Jr.306 Vélez had in his library the seventh edition,307 and that is probably the one he used when drafiing the Argentine Civil Codeo Ihe seventh edition was edited by William Kent, and was the first one to have additions or alterations not made by James Kent.308

Kent was familiar with and interested in civil law. In his court opinions, Kent ofien followed or expressed sorne principIes of continental European law or Roman law to elaborate his decisions or to illustrate them.309 Iherefore, it is not surprising that Vélez, being well acquainted with Roman law, would look with special consideration into the work of Kent. In addition, Kent paid attention to the civillaw tradition,310 and highlighted its importance frequently in his writings on American law. 311 Ihis part of Kent's work has

301 1 KENT, James, Commentaries on American Law (7th ed. 1851). 302 2 KENT, supra note 301. 303 3 KENT, supra note 301. 304 4 KENT, supra note 301. 305 STYCHIN, supra note 292, at 440. 306 1 KENT, James, Commentaries on American Law (12th ed., Oliver Wendell

Holmes Jr. ed. 1873). 307 Biblioteca Mayor, supra note 115, at 65. 308 1 KENT,supranote301,atiii. 309 DUER, supra note 285, at 39-40. 310 STYCHIN, supra note 292, at 453. 311 Id. at 454.

305

been somehow ignored by historians,312 but might have been seen with eager eyes by V élez.

V élez made reference to Kent' s Commenlaries in three notes of the Argentine Civil Code.313 In the first reference, i.e. the note to article 159314 ofthe Argentine Civil Code, Vélez made a transcribed, positive, and doctrinal reference to the work of Kent.315 Vélez referred to Lecture XXVI of the work of Kent, more precisely to pages 83 and 84,316 when he elaborated his note on polygamy and incest as cause for nullifYing a marriage. He did not copy verbatim and he did paraphrase when translating. In the section that V élez cites, Kent refers to common law, but also to civil law (v.gr. CoJe Napoléon and the Louisiana Civil Code) and lo canon law.317

In the second reference, i.e. the note to article 1205,318 Vélez made a direct and positive reference to the work of Kent which also indicated the concordance.319 On that occasion, Vélez mentioned Lectures XXXVII (page 394)320 and XXXIX (pages 458_469),321 when he developed his notion ofthe nature of contracts celebrated in foreign jurisdictions. The pages V élez indicates, especially the ones of Lecture XXXIX, are not limited to common law principies,

312 Id. al 453. 313 See appendix C. 314 Article 159 ofthe Argentine Civil Cede reads in an English translation:

The validity ofmarriage [,when there is no polygarny or incest, ¡s] governed by the law of the place where it was contracted, even though the parties had ¡eft their domicile in order not to be subjected to the [modaJities and laws] governing at such a place.

Civil Code 01 Argentina, supra note 187, at 35. 31S Law No. 340, supra note 15, at 523. 316 2 KENT, supra note 301, at46-49. 317 Id.

318 Artic1e 1205 ofthe Argentine Civil Code reads in an English translation: Contracts made outside the territory ofthe Republic shall be govemed, with respect to their validity or nullity, their nature and the obligations they may produce, by the laws ofthe place in which they were made.

Civil Code 01 Argentina, supra note 187, at 150. 319 Law No. 340, supra note 15, at 626. 320 2 KENT, supra note 301, at476-478. 32\ Id. a1571.591.

306

because Kent al so refers to principIes of international law and, In

sorne parts, to civillaw.322

The third reference to Kent' s work is in the note to artic1e 3136323 ofthe Argentine Civil Code, where Vélez makes a direct and positive reference which al so indicated a concordance.324 On that occasion, Vélez cited Lecture XXVIII, page 169,325 when explaining mortgages. lt must be noted that the reference by Vélez is incorrect, and that the correct reference is to Lecture LVl1I, page 169.326 In this last citation, Kent provides the words that Vélez reproduces in his note. In that same analysis, Kenl makes references lo the civil law and specifically lo lhe Code Napoléon.

2. Story's Cornrnentaries

Joseph SIOry was born on September 18, 1779, al Marblehead, Massachusetts.327 He was a graduate of Harvard, where he started to study in 1795.328 Six years later, he was admitted lo ¡he Essex bar, and opened an office in Salem. 329 In November 1811, he was appointed Associate Justice ofthe US Supreme Court by President Madison.330

322 See, e.g., id. at 583.

323 Article 3136 ofthe Argentine Civil Cade reads in an English translation: If after the mortgage is constituted but prior to recordation of the mortgage, and within the legal tenn for recordation, a subsequent creditor with knowledge of the previous mortgage records the mortgage made in security of his credit-right, the earlier recordation of the subsequent mortgage is ineffective with respect to the first mortgage, provided that the first mortgage is recorded within the legal tenn.

Civil Code 01 Argentina, supra note 187, al 335. 324 Law No. 340, supra note 15, al 800. 325 2 KENT, supra note 301, al 157. 326 4 KENT, supra note 301, at 176-177. 327 CLARK, Gilbert J., Llfe Sketches 01 Eminenr Lawyers, American, English and

Canadian, 294 (1895). 328 I STORY, William W., Life and Letters 01 Joseph Story, 43( 1851). 329 Id. at 95. 330 STORY, Joseph, A Collection 01 Writings By and About an Emjnent American

Jurist, 18 (Schwartz and Hogan eds. 1959).

307

In 1829, he became the first Dane Professor of Law at Harvard.331 He died on September 10, 1845, at Cambridge. 332 During his prolific career, he was a Justice of the US Supreme Court, a Harvard Pro fes sor, and wrote sorne 13 volumes of legal treatises,333 sorne of which sold well in Great Britain and were al so translated into, for example, French, German,334 and Spanish.335 He was considered by many, including James Kent, as the most extraordinary jurist 01 the age. 336

a. Commentaries on the Conflict 01 Laws

In 1834, the first edition of!he Commentaries on the Conflict 01 Laws (Commentaries on Conflict) was published.337 The Commentaries on Conflict became the authority on the subject area in the US and in England, and was highly regarded in France and Germany.338 Unlike its predecessors, the substance of the Commentaries on Conflict was found in the opinions rendered by Anglo-American courts,339 but it extended beyond the limits of the common law because it discussed principIes ofuniversal application and interest.340

The Commentaries on Conflict was divided into 17 chapters.341

331 2 STORY, supra note 328, at 1-2. 332 CLARK, supra note 327, at 294. m Id at 295. 334 CASSODAY, John B., "James Kent and Joseph St01Y", 12 Yale L. J., 146, 148 (1902). 335 See a Spanish translation in STORY, Joseph, Comentario Sobre la Constitución

Federal de los Estados Unidos (Calvo transo 1888). 336 KENT, James, "Letter to the Editor", 1.2 Louisiana Law Journal159 (1841). 337 STORY, Joseph, Commentaries on the Confiiet 01 Laws, Foreign and Domestic, in

regard fa Contrasts, Rights, ami Remedies, and Especial/y in regard lo Marriages, Divorces, Wills, Successions, and Judgments (1834); and LoRENZEN, Emern O., "StOlY'S Cornmentaries on the Confliet ofLaws-One Hundred Years Afier", 48 Harv. L. Rev., 15, 15 (1934).

338 LORENZEN, supra note 337, at 27-28. 339 Id. at 29. 340 2 STORY,SUpra note 328, at 161. 341 The Commentaries were divided into the following ehapters: (i) introductory

remarks, (ii) general rnaxirns of intemational jurisprudence, (iii) national dornieil, (iv) eapacity of persons, (v) marriage, (vi) rnarriage-incidents to, (vii) foreign divorces, (viii) foreign eontraets, (ix) personal property, (x) real property, (xi) wills and testarnents, (xii) successions and distribution, (xiii) foreign guardianships and administrations, (xiv) jurisdiction and remedies, (xv) foreign judgrnents, (xvi) penal laws and offences, and (xvii) evidence and proofs.

STORY, supra note 337.

308

Story collected writings on the civil law from an early date342

and his works consider the views of continental writers, from which he regularly quotes.343 Story looked at the civil law as a source of useful materials, but accepted those materials only when he felt them persuasive and not conflicting with his common law reasoning.344 In a letter to Gustavus Schmidt, dated July 11, 1841, Story said: "1 hail it [referring to the Louisiana Law Journaf] as an important addition to our juridical literature, and coming from that par! of the Union whose jurisprudence presents the most valuable means of improving the science of the common law.,,345 In another letter, dated February 3, 1842, Story said to Schmidt, "we really are sadly ignorant of the vast resources of the Roman,the French, and other foreign laws, which may be brought in aid of our common law studies.,,346 Story adapted Roman and civil law principIes in his Commentaries on Conflict when the common law did not provide a substantive rule. In this way, he imported civillaw ideas into American law. 347

Story's Commentaries on Conflict went through at Ieast eight editions.348 Vélez had a copy of the fifth edition of the book in his library.349 He also had two other works by Story, one of them translated into French350 The fifth edition was edited by Edmund Hastings Bennett, and published in 1857.351 This edition was

342 HOEFLlCH, Michael H., Roman and Civil Law and lhe Development 01 Anglo-American Jurisprudence in rhe Nineteenth Century, 27 (1997).

343 LORENZEN, supra note 337, al 27.

344 HOEFUCH, supra note 342, at41. 345 STORY, Joseph, "Letter to the Editor", 1.2 Louisiana Law Journal, 158 (1841). 346 2 STORY, supra note 328, at 414; and DAvIs, Frederick, "Comparative Law

Contributions to the lnternational Legal Order: Common Core Research", 37 Geo. Wash. L. Rev., 615, 630 (1969).

347 HOEFLlCH, supra note 342, at 42. 348 LORENZEN, supra note 337, at 27.

349 Biblioteca Mayor, supra note lIS, at 107. 350 Id. al 106-107. The works are SrORY, Joseph, Commentaire sur la constitution[édérale des États­

Unis (1843); and SrORY, Joseph, Commentaries on Equity Jurisprudence (1846). 351 SrORY, Joseph, Commentaries on the Conflict o[ Laws. Foreign and Domestic,

in regard to Contrasts, Rights, and Remedies, and Especially in regard 10 Marriages, Divorces, WiIls, Successions, and Judgments (5th ed. 1857).

309

probably the one Vélez used when drafting the Argentine Civil Codeo

Vélez made reference to the Commentaries on Conflict in his writings. References are not only in the notes to fourteen articles of his civil code, but also in the letter of transmission of Book 1 of the draft that Vélez sent to the minister Eduardo Costa on June 21,1865. That letter read, in part:

Regarding the legal doctrines that 1 believed necessary to convert into laws for the First Book, my main guides have been the German jurisconsults Savigny and Zacharire, the great work of Mr. Serrigny on administrative law of the Roman Empire, and the work ofStory, Conflict ofLaws.352

The references to the Commentaries on Conflict within the articles of the Argentine Civil Code are diverse, and this paper will address sorne examples of positive references. 353

V élez makes a direct, positive, and exclusive heuristic reference to the work of Story in the note to article 9354 of the Argentine Civil Codeo There, V élez stated that the personal disqualifications are strictly territorial, and made an exclusive reference to page 105 of the work of Story.'55 It must be noted that the reference is incorrect. The topic is addressed by Story in section

352 The part ofthe letter reads in Spanish: Respecto a las doctrinas jurídicas que he creído necesario convertir en leyes en el primer libro, mis guías principales han sido los jurisconsultos alemanes Savigny y Zachariae, la grande obra del Sr. Serrigny sobre el Derecho administrativo del Imperio Romano, y la obra de Story, Conflict o/ Laws.

VELEZ SÁRSFlELD, supra note 139, at v. See a/so LEVAGOI, supra note 15, at 310; and PARISE, supra note 7, at 848-849.

353 See appendix D. 354 Article 9 ofthe Argentine Civil Cade reads in ao English translation:

lncapacities contrary to the laws of natufe, such as slavery, or those that are penal in character, are merely territorial.

Civil Code 01 Argentina, supra note 187, at 19. 355 Law No. 340. supra note 15, at 506.

310

104, page 198, of Chapter Iy.'56 There is a reference to page 104, and not to section 104, in the draft of Vélez;357 this was incorrectly changed to 105 when revised and approved.

Yélez al so makes three direct, positive, and heuristic references to the work of Story. For example, in article 10358 of the Argentine Civil Code, when stating that real property is ruled by the law ofthe territory, Yélez cited section 224 ofthe work ofStory and a Spanish law included in the Siete Partidas. 359 It must be noted that the correct citation to Story is section 424,'60 and that Yélez translated and transcribed several passages of Story and included them in his article. Story indicated that his rule, that is to say the same rule that Yélez used, was the common law rule, even when in his note he also cited the work by the Frenchmen Foelix. This article shows that civil law (v.gr. the Siete Partidas) and common law (v.gr. Story) principIes share, to sorne extent, a similar grounding when referring to the law ruling in conflicts with real property. Another example of this kind of reference is found in the note to articles 160_163'61 of the Argentine Civil Codeo On that occasion,

356 STORY, supra note 351, at 198.

357 VELEZ SÁRSFIELD, supra note 139, al 4.

358 Article la of the Argentine Civil Cade reads in an English translation: Irnmovables situated in the Republic are govemed exclusively by the laws of the cauntry with respect lo their character as 5uch, the rights of the parties, the capacity lo acquire them, the methods of transferring them, and the fonnalities that must accompany 5uch acts, Therefore, title lo irnmovable property can cnly be acquired, transferred, or lost in accordance with the laws ofthe Republic.

Civil Code 01 Argentina, supra note 187, at 19. 359 Law No. 340, supra note 15, at 506-507. 360 STORY, supra note 351, at 693. 361 ArticJe 160 ofthe Argentine Civil Code reads in an English translation:

The rights and duties of spouses are govemed by the laws of their marriage domicile as long as they stay living there. lfthey change that domicile, their personal rights will be govemed by the laws oftbe new domicile.

Law No. 340. supra note 15, at 523. ArticJe 161 ofthe Argentine Civil Code reads in an English translation:

The marriage contract govems over the property of the marriage, regardless of the laws of the marriage domicile or of the new domicile in which the spouses are located.

311

when addressing the law ruling marriage, Vélez mentioned that he took these artic1es from ehapter VI362 of the Commentaries on Confliet and from artiele 2370363 of the Louisiana Civil Code. 364

The wording ofthe artic1es shows that artic1e 2370 eould be a souree only for artic1e 163 of the Argentine Civil Codeo Story mentioned artic1e 2370 in his Commentaries on Confliet and that he analyzed the situation in Louisiana.365 In his eonc1usions, Story eovered the same topies eovered in artic1es 160-162 of the Argentine Civil Code.366 Therefore, artiele 2370 is an indireet and formal souree for the Argentine text through the work of Story.

V élez also made three referenees that were direct, positive, and of eoneordanee when working with the Commentaries on Confliet. For example, in artic1e 12367 of the Argentine Civil Code, when referring to the law ruling on the form and solemnity of

Id. at 523. Article 162 ofthe Argentine Civil Code reads in an English translation:

When no matrimonial agreements or changes in domicile exist, the law of the place of celebration ofthe marriage governs ayer the moveable property of the spouses. regardless of where it is ¡ocated oc where it was acquired. Irnmovables are governed by the law ofthe place where they are located.

Id. at 523. Article 163 ofthe Argentine Civil Code reads in ao English translation:

When a change in domicile exists, the property acquired by the spouses before the change of domicile is govemed by the laws of the previous domicile. The property acquired after the change of domicile is govemed by the law ofthe new domicile.

Id. at 523-524. 362 STORY, supra note 351, at 242-305. 363 ArticJe 2370 ofthe Louisiana Civil Code of 1825 reads:

A marriage, contracted out of this State, between persons who afterwards come here to live, is also subjected to the community of acquets, with respect to such property as is acquired alter their arrival.

Civil Cade aJthe State aJLauisiana, 768 (1825). 364 Law No. 340, supra note 15, at 523-524. 365 STORY, supra note 351, at 289. 366 Compare with the topies covered by Sto!)'. Id. at 286-305. 367 Article 12 ofthe Argentine Civil Code reads in an English translation:

Forms and formalities of contracts and of eve!)' public document are govemed by the laws ofthe eount!)' in whieh they were made.

Civil Code 01 Argentina, supra note 187. at 20.

312

contracts, Vélez indicated a concordance between his article and article 10368 of the Louisiana Civil Code.'69 Vélez took the wording of his artic1e from artic1e 10 of the Concordancias of García Goyena 370 In that same artic1e, Vélez indicated a concordance with section 260 el seq.371 of the work of Story. In his note, Vélez correctly stated that Story provided an extensive and very important discussion ofthe topic. In his development, Story looked at common law examples and sources. Nevertheless, in section 264, Story provided "an illustration [tha!] may be taken from a case ofien put by civilians.,,372 lt must be noted that in that same note Vélez also made references to Roman and Spanish law.

Vélez al so drafied six notes that inc1uded direct, positive, and doctrinal references. For example, Vélez included the work of Story, as he had done with the work of Kent, in the note to his artic1e 159373

when elaborating on polygamy and incest as a cause for nullifying a marriage.374 Vélez correctly referred to section 121 el seq.375 ofthe Commentaries on Conflict on this point, and to the Spanish scholar that Story cites. In addition Vélez transcribed a short passage of the

368 ArticIe 10 of the Louisiana Civil Code of 1825 reads: The fonn and effect of public and private written instruments are govemed by the laws and usages ofthe p[aces where they are passed or executed. But the effect of acts passed in ene country, to have effect in another country, is regulated by the laws of the country where they are to have effect. The exception made in the second paragraph of this article does not hold, when a citizen of another State of the Union, Uf a citizen or subject of a foreign State or country, disposes by will or testament, or by any other aet causa mortis made out of this State, of his moveable property situated in this State, if at the time of making said will or testament, or any other act causa mortis, and at the time ofhis death, he resides and is domiciliated out ofthis State.

Civil Code allhe Slale 01 Louisiana, 4-6 (1825). 369 Law No. 340, supra note 15, at 507. 370 1 GARCíA GOYENA, supra note 124, at 22. 371 SrORY, supra note 351, at 392 et seq. l72 Id. al 404. 373 See supra note 3 14. 374 Law No. 340, supra note 15, at 523. 375 SrORY, supra note 351, at 221 et seq.

313

English work, not copying verbatim, but paraphrasing.376

Most of the references that Vélez did of the abovementioned work of Story are in the area of conflict of laws, espeeially foeusing on eapaeity, form and effeets of contracts, marriage, and testaments.

b. Commentaries on Equity Jurisprudence

Story started to work on his book on equity jurisprudence the moment the one on Conflict of Laws was published.'77 Two years later, in 1836, the first edition of the Commentaries on Equity Jurisprudence (Commentaries on Equity) was published. 378 Story, like Kent, when drafting his Commentaries, had originally envisioned one volume, but with time realized that the topie eould not be limited to just one.37

' The Commentaries on Equity comprised, in its fourth edition, two volumes. Volume 1 was divided into 16 ehapters'60 and Volume II was divided into 27 ehapters.'61

376 It seems that Vélez paraphrased from section 114. See, id at 206-207. 377 2 STORY, supra note 328, at 179.

378 1-2 STORY, Joseph, Commentaries on Equity Jurisprudence, As Administered in England and America (1836); and 2 STORY, supra note 328, at 221.

379 2 STORY, supra note 328, at 211.

380 Volume 1 was divided into the following chapters (i) the true nature and character of equity jurisprudence, Oi) the origíns of equity jurisprudence, (jii) general view of equity jurisprudence, (iv) current jurisdiction of equity-accident, (v) mistake, (vi) actual or positive mistake, (vii) constructive fraud, (viii) account, (ix) administration, (x) legacies, (xi)confusion ofboundaries, (xii) dower, (xiii) marshalling ofsecurities, (xiv) partition, (xv) partnership, and (xvi) matters ofrent.

I SrORY, Joseph, Commentaries on Equity Jurisprudence, As Administered in England and America(4th ed. 1846).

381 Volume Il was divided into the following chapters: (xvii) peculiar remedies in equity-discovery--cancellation and delivery of instruments, (xviii) specific performance of agreements and other duties, (xix) compensation and damages, (xx) interpleader, (xxi) bilis quia limel, (xxii) bills of peace, (xxiii) injunctions, (xxiv)excJusive jurisdiction-trusts, (xxv) marriage settlements, (xxvi) terms for years, (xxvii) mortgages, (xxviii) assignments, (xxix) wills and testaments, (xxx) election and satisfaction, (xxxi) application of purchase-money, (xxxii) charities, (xxxiii) implied trusts, (xxxiv) penalties and forfeitures (xxxv) ¡nfants, (xxxvi) idiots and lunatics, (xxxvii) married women, (xxxviii) set-off, (xxxix) establishing wills, (xl) awards, (xli) writs of ne exeal regno, and supplicavit, (xlii) bilis of discovery, and to preserve and

314

When looking at the construction of the American system of law, sorne scholars regard the Commentaries on Equity as Story's most important contribution.'82 In his work, Story presented English equity in a very readable fashion and depicted it as essentially Roman law, being a body ofuniversal principies ofjustice.'8'

These new commentaries by Story were also well read, not only in the US, but also in Europe and Latin America.'84 The Commentaries on Equity went through at least fourteen editions.'85 Vélez had the fourth edition in his library. This edition was released in 1846 and published posthumously by William Story, including the revisions and editions ofhis father, Joseph Story.'86

Story said when speaking of equity, that "that portion of the common law, which is now most admired for its sound policy, derives its principal attraction from its being founded in a large and liberal equity, and therefore is assumed as a rule equally at Paris and at London, at Rome and at Washington.,,'8? In this same line ofideas, Vélez added in his note to articles 2567_2570'88 that ordinary judges

perpetuate evidence, and (xliii) peculiar defences and proofs in equity. 2 SrORY, supra note 380. 382 REUSCHLE!N, Harold Gill, Jurisprudence, its American prophets; A survey o[

taughtjurisprudence, 55 (1951). 383 id.

384 See, e.g., the letter ofthe Frenchmen Foelix dated February 22,1841, in which he praised the work ofStory. 2 SrORY, supra note 328, at 375.

385 SrORY, Joseph. Commentaries on Equity Jurisprudence, As Administered in England and America (W.H. Lyon. lr. ed., 14th ed. 1918); and STORY, supra note 330,

at 222. 386 1-2 SrORY, supra note 380. 387 SrORY, supra note 330, at 63. 388 Article 2567 oftbe Argentine Civil Code reads in an English translation:

Ownership is acquired by transfonnation or specification when someone with his work makes a new object using someone else's materials with the intention of appropriating it.

Civil Code 01 Argentina, supra note 187, at 281. Article 2568 ofthe Argentine Civil Code reads in an English translation:

If the transfonnation is made in good faith, and the person making the transfonnation did not know that the thing belonged to another and it were not possible to bring the thing back to its previous fonn, the owner thereof shall only be entitled to the corresponding indemnification.

315

in Argentina also could decide on equity matters, even when they were not courts ofequity, such as in the states ofthe US that did not have specific courts of equity.389 That was the only note in which the Argentinean made reference to this work of Story. In that note he directed the readers to section 623 390 of the Commentaries on Equity, making in that way a direct, positive, and doctrinal reference to the North American work.

IV. OveraIl Impact of North American Sources in the Civil Code of Argentina

The Argentine Civil Code includes in its notes references to sources from many diverse origins, including Roman, Brazilian, Castilian, French, and Germanic. North American sources, such as the Louisiana Civil Code, the Project of a Civil Code for the State of New York, and the works of Kent and Story are mentioned in more than 300 notes. Those notes are distributed throughout the four books and Preliminary Title I of the Argentine Civil Codeo

Id. at 281-282. Article 2569 of the Argentine Civil Code reads in an English translation:

1 f the transformation were made in bad faith, where the person making the transformation knew or should have known that the thing belonged to another, and it is impossible to bring the thing back to its prior form, the Qwner of the materials shall have the right to be compensated for all damages and lo bring the criminal action for which the act ¡nvolved may give rise, unless he prefers to have the thing in the new form, paying the person making the transfonnation [or the ¡ncrease in value of the thing as a result ofthe transfonnation.

Id. at 282. Article 2570 ofthe Argentine Civil Code reads in an English translation:

Id.

If the transformation was made in good faith and it were possible to bring the thing back to its original fonn, the owner of the materials shall be the owner of the new thing by paying the transformer for his work; but he has a right to demand the value of the materials only, in which case the thing remains the property ofthe person making the transfonnation.

389 Law No. 340, supra note 15, at 744. 390 STORY, supra note 351, at 986·987.

316

A vast majority of references to North American sources are directo In those cases Vélez identified the article, section, or passage of the source that he referred to. On very few occasions, V élez made general references. This may show that V élez was familiar with the sources he was citing.

On mosl occasions, references to North American texts are positive. That is to say, Vélez mentioned those sources in a positive way, indicating that they provided principies that were similar to those applied in Argentina. Sorne references were negative, and in those cases Vélez indicated that he did not follow the principies included in the North American sources. The majority of positive sources could have been generated due to the Roman law perspective and influence that Vélez found in North American sources, which he felt appropriate for the Argentine legislation.

The references are also mainly of concordance. In those notes, and primarily with the assistance of the works of concordances of Saint-Joseph and García Goyena, Vélez was able to identify the corresponding passages in North American sources. These references of concordances in many cases were al so followed by corresponding texts from other authors or civil codeso

N orth American sources also provided doctrinal references, which were used in doctrinal notes when explaining sorne legal doctrines. In those cases, Vélez would look into the North American texts as a tool to explain his position. Most doctrinal references are positive, although sorne are clearly negative.

Finally, in more than 50 notes Vélez used the North American texts as sources for his texts. That is lo say, he made heuristic references, indicating the origins of his texts. In approximately half of those references, N orth American sources were exclusive for his articles.

The many references to North American sources should not surprise the readers. The Louisiana Civil Code of 1825 was a good exponent of nineteenth-century civil codification, which was generated in a jurisdiction that at that time was purely civilian. The

317

Project of a Civil Code for the State of New York, although not purely a civil law creature, was vested and illustrated with civil law principIes and with references to many civil law authorities. The works of Kent and Story are properly known as excellent exponents of the common law. The works of these two authors valued Roman and civillaw traditions and were able to inelude them in their pages. Nevertheless, their works must be seen as works on common law.

The examples of references ineluded in this paper mainly focus on the reception that civil law had in all North American sources. This paper does not intend to show that all North American sources were civilian, something that is elearly not the case. The paper intends to show that V élez drafted in an eclectic way while working with several sources, and that these sources were also valued, even if they carne from common law jurisdictions.

V. Final Cornments

V élez borrowed and transplanted prOVISlOns from North American sources into the Argentine Civil Codeo While doing so, he became the new owner of those provisions, because those provisions interacted with the Argentine ethos: an interaction that still exists.

Since the 1870s, Argentine scholars have been looking at the origins of the transplanted provisions, making it a fertile area of study. This paper will hopefully add to the previous studies and provide a new grounding for future works.

It may be said that the adaptation of individual provisions from North American sources into the Argentine legal system and society was successful. It was a work of legal science to import institutions that were absorbed by !he remaining legal structure:91

391 These words are borrowed, mutatis mutandis, from the analysis that Robert A. PASCAL made on trust in Louisiana. PASCAL, Robert A., "Of Trusts, Human Dignity, Legal Science, and Taxes: Suggested Principies for a Louisiana Trust Estates Law", 23 La. L. Rev., 639, 659 (1963).

318

The Argentine Civil Code is elearly a successful legislative act. It has survived for more Ihan 130 years, and, aboye aH, il has become the Argen/ine civil code, that is to say, it is elearly identifiable to the Argentine e/has. Vélez predicted this success when he said, "give me a different society and I will give you different laws."392

VI. Appendices

The first table of each appendix ineludes a breakdown of the different references made to each N orth American source within the Argentine Civil Codeo

The second table of each appendix ineludes all the references that the Argentine Civil Code makes to the different North American sources. The numbers in the left column correspond to Argentine artieles, while the numbers and units in the middle column are those of North American sources that correspond to those of the Argentine Civil Codeo The symbol NI A (not available l has been used when no direct reference was provided by Vélez. FinaHy, the column on the right indicates the type of reference that the note makes to the North American text (G: General, P: Positive, N: Negative, C: Concordance, D: Doctrinal, H: Heuristic, and H Exclusive: Exclusive Heuristic l.

The reference to the Commentaries on Equity did not merit an appendix and is analyzed in m.B.2.b.

392 MARJLUZ URQUÍJO, José María, "Dalmacio Vélez Sársfield: Tradición y Modernidad", 29 Revista de Historia del Derecho, 13,20 (2001).

319

A. References to the Louisiana Civil Code

General References 10393

I Positive 3 Concordances I

Doctrinal 2 Heuristic O

I Negative 8 Concordances 5 Doctrinal 3 Heuristic O

Direct References 278 I Positive 258

Concordances 180 Doctrinal 30 Heuristic 22 Exclusive 26

I Negative 20 Concordances 14 Doctrinal 6 Heuristic O

Transcribed References 7

I Positive 2 Concordances l

Doctrinal l

Heuristic O

I Negative 5 Concordances 3 Doctrinal 2 Heuristic O

Total References 295

393 n. b. the Argentine Civil Cade made general references to the Louisiana Civil Cade in ten notes. The note to article 2182 of the Argentine text provided both positive and negative references, hence, qualifYing in both categories.

320

Argentine Civil Louisiana Civil Code Code Reference (1871) (1825)

12 10 o,p,e

17 N/A G,N,e

18 12 o,p,e

20 7 o,p,e

Note (a), before N/A G,N,O article 30

54 413 T,P,O

63 29 O,P,O

72 948 and 917 T,N,O

160,161,162, and 163 2370 O,P,H

250 207 O,P,H

325 N/A G,P,O

343 914 o,p,e

377 N/A G,N,e

383 275 o,p,e

389 282 o,p,e

394 279 O,N,e

416 343 o,p,e

424 341 O,N,e

443, paragraphs 4 345 and 348 O, p,e

and 7

450 327 o,p,e

451 342 O,N,e

456 3003 o,p,e

462 352 o,p,e

464 Id. o,p,e

321

Argentine Civil Louisiana Civil Code Code Reference (1871) (1825)

466 353 o,p,e

470 384 and 385 o,N,e

473 394 o,p,e

475 361 and 362 o,p,e

483 410 O, P, H Exclusive

501 1891 O,P,H

510 1907 O,P,H

522 1928 T,N,e

619 2884 O,N,O

629 1920 and 1921 T,N,e

709and710 2091 o,p,e

725 2127 and 2128 o,p,e

730 2132 O, p,e

747 2153 o,p,e

818 2204 o,p,e

820 2205 o,p,e

821 2210 o,p,e

832 3038 o,p,e

835 3040 o,p,e

850 3045 O,P,O

859 3050 o,p,e

860 3049 o,p,e

862 2214 o,p,e

923 1813 O,P,O

931 1844 o,p,e

322

Argentine Civil Louisiana Civil Code Code Reference (1871) (1825)

936,937, and 938 1845-1847 D,P,D 941 1844 D, p,e

943 2567 D,N,D 979 2231 D,p,e

987 2232 D,p,e

993 2233 D,p,e

995 2235 D,p,e

1031 2240 D,p,e

1033 2241 D,p,e

1061 2252 D,p,e

1065 Id. D,p,e

1113 2299 D,p,e

1131 2301 D,N,e 1204 2041 D,N,e 1276 2373 D,p,e

1294 2399 D,p,e

1324 489 D,p,e

1380 2545 D,N,e 1381 N/A G,N,e 1389 2561 D,p,e

1390 2562 D,p,e

1432 2041 D,N,D 1492 2637 D,p,e

1497 2703 D,p,e

1498 2704 D,P,D

323

Argentine Civil Louisiana Civil Code Code Reference (1871) (1825)

1572 2693 o,p,e

1622 2658 and 2659 O,N,O

1646 2733 o,N,e

1651 N/A G,N,e

1677 2810 o,p,e

1681 2838 o,p,e

1692 2839 o,p,e

1725 2833 T, N,e

1741 2855 and 2856 o,p,e

1747 2844 o,p,e

1797 1529 o,p,e

1831 1494 o,p,e

1842 1521 O,P,O

1850 1546 o,p,e

1858 1547 o,p,e

1865 1547 o,p,e

1866 1549 o,p,e

1867 1951 o,p,e

1868 1556 o,N,e

1906 2980 o,p,e

1909 2973 and 2974 o,p,e

1949 2991 o,p,e

1950 2994 o,p,e

1956 2992 o,p,e

2001 3012 o,p,e

324

Argentine Civil Louisiana Civil Code Code Reference (1871) (1825)

2012 3014 o,p,e

2026 3026 O, p,e

2030 3021 o,p,e

2032 3023 o,p,e

2043 3031 O,P,O

2046 3032 o,p,e

2050 3031 o,p,e

2097 2477 o,p,e

2099 2480 o,p,e

2101 2481 o,p,e

2118 2482 o,p,e

2125 2487 o,p,e

2141 1422 o,p,e

2142 1426 o,p,e

2164 2496 and 2497 o,p,e

2168 2513 el seq. O,N,e

2182 N/A G, P, O & G, N, O

2208 2911 o,p,e

2216 2925 and 2926 o,p,e

2240 2881 o,p,e

2251 2892 o,p,e

2255 2862 and 2863 o,p,e

2269 2870 and 2871 o,p,e

2270 2873 o,p,e

2278 2874 o,p,e

325

Argentine Civil Louisiana Civil Code Code Reference

(1871) (1825)

2281 2876 D,p,e

2283 2877 D,p,e

2284 2878 D,p,e

2286 2880 D,p,e

2353 3404 D,p,e

2356 495 D,p,e

2423 494 D,p,e

2445 3407 el seq. D,p,e

2447 3408 D,p,e

2456 3412 D, P, H

2507 482 D,P,D

2509 487 D,P,H

2510 488 D,P,H

2511 489 D,P,H

2567,2568,2569, 517 and 518 D,N,D and 2570

2572 501 D,p,e

2583 503 D,p,e

2587 499 D, P, e

2594 513 D,P,D

2595 515 D,p,e

2596 523 D,p,e

2600 520 D,p,e

2616 666 D, P, H Exclusive

2621 688-691 D,p,e

2622 689 D, P, H Exclusive

326

Argentine Civil Louisiana Civil Code Code Reference

(1871) (1825)

2623 690 O,P,H

2624 691 D, P, H Exclusive

2630 694 o,p,e

2646 656 D,p,e

2653 Id. o,p,e

2654 692 o,p,e

2660 693 o,p,e

2722 674 D,p,e

2723 675 D,p,e

2725 671 O, P, H Exclusive

2730 681 D,p,e

2731 676 o,p,e

2732 677 o,p,e

2733 678 o,p,e

2742 683 O, P, H Exclusive

2743 684 D, P, H Exclusive

2807 525 O,P,O

2808 526 D,P,H

2811 528 D, P, H Exclusive

2838 533 O,P,H

2846 525 o,p,e

2855 552 D,P,H

2856 557 D,p,e

2857 Id. D,p,e

2863 536 D,p,e

327

Argentine Civil Louisiana Civil Code Code Reference (1871) (1825)

2864 538 O,P,O

2865 540 o,p,e

2866 545 o,p,e

2880 584 and 585 D,p,e

2894 572 o,p,e

2897 581 O, P,H

2902 587 D,p,e

2920 601 D,p,e

2937 609 D,p,e

2953 628, 634, 636, o,p,e

and 637

2967 624 and 625 D, P, H

2986 735 O,P,H

2987 738 O, P, H Exclusive

2993 766 o,p,e

3003 750 - 754 D, P, H Exclusive

3011 749 D, P,H

3012 755 O,P,H

3013 756 D, P, H Exclusive

3014 757 O, P, H Exclusive

3016 760 D, P, H Exclusive

3017 761 D,p,e

3018 770 o,p,e

3021 775 D,P,H

3037 773 D,p,e

3044 749 D, P, H Exclusive

328

Argentine Civil Louisiana Civil Code Code Reference (1871) (1825)

3045 818 D,P,H

3053 780 and 781 D,p,e

3055 801 and 802 D,p,e

3056 802 D,p,e

3057 808 D,p,e

3059 786 D,P,D

3061 897 D,p,e

3062 798 D,p,e

3063 792 D,p,e

3068 696 D,p,e

3073 697 D,p,e

3074 696 D,p,e

3075 698 D, P, H Exclusive

3077 697 D,p,e

3122 3266 D, P, H Exclusive

3125 3268 D,p,e

3135 3316 D, P, H Exclusive

3142 3329 D, P, H Exclusive

3149 3319 D, P, H Exclusive

3150 3320 D, P, H Exclusive

3151 3333 D,p,e

3201 3337 D, P, H Exclusive

3202 3340 el seq. D, P, H Exclusive

3203 3343 D,P,D

3205 3129 D,p,e

329

Argentine Civil Louisiana Civil Code Code Reference

(1871) (1825)

3224 3132 D,P,C

3225 3134 D,P,C

3228 Id. D,N,C

3229 3131 D,P,C

3231 3135 and 3136 D,P,C

3233 3138 D,P,C

3235 3130 D, P, H Exclusive

3279 867 D,P,C

3291 960 D,P,D

3293 960 D,N,C

3302 944 T,P,C

3304 968 D,P,H

3305 963 D,P,C

3316 1001,1002,1015,

D,P,D 1017, and 1018

3317 980 and 1009 D,P,C

3319 982 D,P,C

3331 1022 D,P,C

3345 1010 D,P,D

3371 1047 D,P,C

3433 1397 el seq. D,P,D

3460 1227 D,P,C

3477 N/A G,N,D

3482 1318 D,P,C

3502 1378 D,P,C

3508 1426 D,P,C

330

Argentine Civil Louisiana Civil Code Code Reference (1871) (1825)

3514 1225 D,P,D

3547 881 D,p,e

3552 896 D,p,e

3560 N/A G,p,e

3561 895 D,p,e

3572 (3570 and N/A T,N,D

3571)

3586 N/A G,N,e

3607 1564 D,P,D

3614 1464 D,N,D

3618 1566 D,P,D

3664 1585 and 1586 D,N,e

3666 1577 and 1578 D,p,e

3667 1578 D,p,e

3670 1583 D,P,D

3672, 3673,and 1590 D,p,e

3674

3679 1594 D,p,e

3692 1648 and 1650 O, p,e

3741 1478 D,P,D

3743 1690 D,p,e

3744 1609 el seq. O, p,e

3745 1611 and 1612 D,p,e

3746 1616 D,p,e

3752 1632 D,P,D

3827 1685 D,p,e

331

Argentine Civil Louisiana Civil Code Code Reference

(1871) (1825)

3828 1686 O,N,e

3838 1688 O,P,O

3847 1656 and 1657 D,P,O

3872 1676 o,p,e

3880 3160 O,P,D

3891 3184 (2) O, P, H Exclusive

3897 3190 D, P, H Exclusive

3933 3216 O, P, H Exclusive

3947 3420 el seq. o,p,e

3948 3421 and 3422 O,P,H

3958 3486 o,p,e

3962 3428 O,P,H

3963 3429 o,p,e

3964 3426 O,P,D

3984 3483 O, P, e

3986 3484 D,P, ° 3999 3435 D,P,O

4002 3443 o,p,e

4008 3447 and 3448 o,p,e

4010 3449 D,P,D

4015 3465 and 3466 o,p,e

4018 3515 o,p,e

332

B. References to the Project of a Civil Code for the State of New York

General References l

I Positive O Concordances O

Doctrinal O Heuristic O

I Negative I

Concordances O

Doctrinal I

Heuristic O

Direct References 8

I Positive 8

Concordances 4

Doctrinal O

Heuristic O

Exclusive 4

I Negative O

Concordances O

Doctrinal O

Heuristic O

Transcribed References I

I Positive I

Concordances I

Doctrinal O

Heuristic O

I Negative O

Concordances O

Doctrinal O

Heuristic O

Total References lO

333

Argentine Civil Code Project of a Civil

Code for the State of Reference (1871) New York (1865)

1047 54 D,P,C

1670 1285 T,P,C

1679 1323 D, P, H Exclusive

1680 1324 D, P, H Exclusive

1722 1347 D,P,C

2038 675 D,P,C

2538 938 D,P,C

3115 N/A G,N,D

3825 554 D, P, H Exclusive

3826 568 D, P, H Exclusive

334

C. References to the Commentaries on American Law by Kent

General References O

\ Positive O

Concordances O

Doctrinal O

Heuristic O

I Negative O

Concordances O

Doctrinal l

Heuristic O

Direct References 2

I Positive 2

Concordances 2

Doctrinal O

Heuristic O

Exclusive O

I Negative O

Concordances O

Doctrinal O

Heuristic O

Transcribed References l

I Positive l

Concordances O

Doctrinal l

Heuristic O

I Negative O

Concordances O

Doctrinal O

Heuristic O

Total References 3

335

Argentine Civil Commentaries on Code American Law Reference

(1871) (7th ed. 1851)

159 Leeture XXVI,

T,P,O ps.83-84

Leeture XXXVII,

1205 p. 394 &

O,P,C Leeture XXXIX,

ps.458-469

Leeture XXVIII, p. 169

3136 Correet eitation is: O,P,C

Leeture LVIII, p. 169

336

D. References to the Commentaries on the Conflict 01 Laws by Story

General References O I Positive O

Concordances O

Doctrinal O Heuristic O

I Negative O Concordances O

Doctrinal O Heuristic O

Direct References 14

I Positive 13 Concordances 3

Doctrinal 6

Heuristic 3

Exclusive 1

I Negative 1 Concordances O Doctrinal 1

Heuristic O Transcribed References O

I Positive O

Concordances O Doctrinal O Heuristic O

I Negative O Concordances O Doctrinal O Heuristic O

Total References 14

337

Argentine Cornrnentaries Civil Code on the Conllict of Laws Reference

(1871) (5th ed. 1857)

6·8 Chapter IV D,P,D

Page 105 9 Correet eitation is: D, P, H Exclusive

Seetion 104

Seetion 224 10 Correet eitation is: D,P,H

Section 424

11 Sections 362·376, 38,

D,P,C 388 et seq.

12 Section 260 et seq. D,P,C

159 Seetion 121 D,P,D

160· 163 Chapter VI D,P,H

165 Chapter V D,N,D

1205 Sections 242, and 263 to

D,P,D 267

1206 and 1207 Sections 244 and 351 D,P,D

1208 Sections 245 and 257 D,P,D

1209 and 1210 Sections 242 and 280 D,P,C

1215 and 1216 Chapter VIII D,P,D

Chapter XI, Section 445

3611 Correet eitation is: D,P,H

Chapter XI, Seetion 465

338